New South Wales Supreme Court CITATION : ANZ Banking Group Ltd v PA Wright & Sons Pty Ltd [1999] NSWSC 656 CURRENT JURISDICTION : Equity Division Commercial List FILE NUMBER(S) : 50198/96 HEARING DATE(S) : 27.7.98, 28.7.98, 29.7.98, 30.7.98, 3.8.98, 4.8.98, 5.8.98, 6.8.98, 10.8.98, 11.8.98, 12.8.98, 13.8.98, 17.8.98, 18.8.98, 19.8.98, 20.8.98, 24.8.98, 25.8.98, 26.8.98, 27.8.98, 31.8.98, 1.9.98, 2.9.98, 3.9.98, 7.9.98, 8.9.98, 9.9.98, 10.9.98, 14.9.98, 16.9.98, 23.9.98, 28.9.98, 30.9.98, 2.11.98, 3.11.98, 5.11.98, 25.6.99 JUDGMENT DATE : 29 June 1999 PARTIES : Australia and New Zealand Banking Group Ltd v P.A. Wright and Sons Pty Ltd; Wallamumbi Pty Ltd; Achill Pty Ltd; Yarrowyck Pty Ltd; Ostabrew Pty Ltd; Melrose Meats Pty Ltd; Esrolem Pty Ltd; Phillip David Arundell Wright; Margaret Du Moulin Wright JUDGMENT OF : Hunter J COUNSEL : Plaintiff: Mr JE Thomson Defendants: Mr D Higgs SC + Ms S Kaur-Bains SOLICITORS : Plaintiff: Minter Ellison Defendants: Jackson Smith CATCHWORDS : DECISION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST HUNTER J TUESDAY 29 JUNE 1999 50198/96 ANZ BANKING GROUP LTD v PA WRIGHT & SONS PTY LTD & 8 ORS REASONS FOR JUDGMENT 1 In this matter I delivered reasons for judgment and directed the parties to bring in short minutes to give effect to those reasons for judgment and to resolve two outstanding matters as to interest and costs. In relation to those matters, the plaintiff has presented short minutes dated 29 June 1999. 2 In relation to paragraph 3 of those proposed orders, the application for indemnity costs is based upon an offer of compromise as evidenced in the affidavit of Lindsay Michael Powers sworn 29 June 1999. That offer was made on 11 December 1997 and proposed judgment in favour of the plaintiff in the sum of $31,000,000 together with orders which appear to be expressed in terms of what is claimed in the second amended summons relating to possession and rectification. 3 No detailed calculation has been placed before me as to the component of interest that might be seen to be waived by the plaintiff in respect of that offer. However, one could assume that it would exceed $3 million subject to this: There is some doubt in the plaintiff's mind whether the amount of approximately $31,900,000 claimed in the second amended summons includes a quantum of costs assessed in accordance with clause 1 of the cross-deed of covenant dated 8 July 1992, part of Exhibit A. However, putting that aside, the correct approach to the compromise offer, I think, is to treat it as one which, as things have eventuated, ought represent a benefit to the defendants/cross-claimants of at least some $3,000,000. Nevertheless, I am of the view that having regard to the complexity and the nature of the dispute, which I think I have outlined in some detail in the reasons for judgment, I would not be prepared to visit the defendants/cross-claimants with indemnity costs by reason of their refusal of that offer, particularly having regard to the comparatively small amount, although measured in millions, that the defendants' compromise may have represented to the defendants/cross-claimants. 4 The plaintiff further seeks an order for costs on a "solicitor and own client" basis (in accordance with clause 1 of the cross-deed of covenant dated 8 July 1992) for the period from 11 October 1996. Senior counsel for the defendants/cross-claimant opposes the making of that order on the basis that it had not been precisely claimed in the plaintiff's summons. 5 That submission overlooks the terms of the second amended summons of the plaintiff which did so claim costs of the proceedings and, in my view, nothing has been advanced on behalf of the defendants/cross-claimants to indicate any prejudice arising outside of that oversight and no other basis has been advanced why such an order should not be made. However, during the course of submissions I noted that there appeared to be no obvious explanation for the calculation of the costs on that basis from 11 October 1996, that being the date of the summons, unless costs as assessed had been included in the amount claimed in the plaintiff's summons. The plaintiff has not be able to confirm that to be the case. 6 Accordingly, the approach I have decided to take is to decline the making of an order on an indemnity basis and to confine the orders to one, being the assessment of costs in accordance with the referred to clause in the cross-deed of covenant without limitation as to time and I have amended that by striking out the following words from paragraph 3 of the short minutes, namely "for the period from 11 October 1996 until 11 December 1997, and on an indemnity basis thereafter". 7 In relation to the judgment sum stipulated in paragraph 1 of the short minutes, the defendants/cross-claimants have not been given an opportunity of calculating whether that sum has been correctly arrived at. The evidence for that calculation is that of Brian Patrick Soper sworn 29 June 1999 and, in view of the desirability of concluding the matter today as far as it concerns this Court, the course I propose to follow is to give judgment in the terms sought but on the undertaking of counsel for the plaintiff that that judgment will not be entered within forty-eight hours without the consent of the defendants and by giving the defendants liberty to apply on twenty-four hours notice should it be necessary to correct that calculation. I will deal with that matter when I come to making the final order. 8 In relation to paragraphs 7 and 9 to 11 in the renumbered paragraphs, I have made alterations in manuscript as follows: In paragraph 7, by adding the words "such writ to lie with the sheriff for twenty-one days thereafter"; paragraph 9, by substituting "26" for the figure "19" and "13" for the figure "6"; paragraph 10, by substituting "20" for the figure "13"; and paragraph 11, by substituting "9" for the figure "7". 9 In relation to paragraph 8, Senior Counsel for the defendants has submitted that the injunction there referred to should remain in place pending any further order of the Court of Appeal. In substance I agree with that approach. However, I think the combination of paragraphs 8 and 9 in practical terms will have the same effect. Certainly it is my intention that in making these orders and in granting the stay and suspension referred to in paragraph 9, it is intended that, in the event of an application for a continuation of a stay being made to the Court of Appeal, the Court of Appeal will revisit all elements affecting the status quo of the parties in the event that a continuation of a stay is granted: including in that a relook at the terms of the subject injunction which may need recasting in the light my judgment of 25 June. 10 Accordingly, on the undertaking of counsel for the plaintiff not to enter the subject orders without the consent of the defendants within forty-eight hours of the making of these orders, I give judgment and make the orders as set out in the short minutes dated 29 June 1999, initialled and as amended by me and placed with the papers. The plaintiff has liberty to apply on twenty-four hours notice in the event that the sum referred to in that judgment has been calculated incorrectly with the view to reviewing that judgment sum. oOo Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.