CFA Group v Mars Trading [2001] NSWSC 67

New South Wales Supreme Court

CITATION : CFA Group v Mars Trading [2001] NSWSC 67 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50020/00 HEARING DATE(S) : 21/02/01 JUDGMENT DATE : 22 February 2001

CFA Group Services Pty Limited - First Plaintiff CFA Administration Pty Limited - Second Plaintiff Mars Trading Pty Limited - First Defendant PARTIES : Yengrin Pty Limited - Second Defendant Macadamia Properties Pty Limited - Third Defendant Ellicott Pty Limited - Fourth Defendant Carbest Pty Limited - Fifth Defendant Graham Edward Hayes - Sixth Defendant JUDGMENT OF : Rolfe J

COUNSEL : Mr J.E. Marshall - Plaintiffs Mr I. Wales SC - Defendants SOLICITORS : Clayton Utz - Plaintiffs Helliars City Solicitors - Defendants CATCHWORDS : Application for adjournment. DECISION : I order that the Notice of Motion dated 19 February 2001 be dismissed and that the defendants pay the plaintiffs' costs of the Notice of Motion.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

ROLFE J

THURSDAY, 22 FEBRUARY 2001

50020/2000 - CFA GROUP SERVICES PTY LIMITED & ANOR v MARS TRADING PTY LIMITED & ORS

JUDGMENT

HIS HONOUR:

Introduction 1 By a Summons issued on 6 March 2000 the plaintiffs, for which Mr J.E. Marshall of Counsel appeared, sought orders against the defendants, for which and whom Mr I.M. Wales of Senior Counsel appeared, for payment of a specified sum, damages and complete indemnity pursuant to guarantees allegedly given. The plaintiffs' case, put shortly but, I think, adequately for present purposes, is that they entered into various contracts with the defendants for the sale by them to the defendants of commercial product, business assets and realty in about October and November 1999. It is the plaintiffs' case that the defendants wrongfully repudiated these contracts by failing to complete them with the consequence that the plaintiffs then sold those assets on a less favourable market and, put once again a little simplistically, the plaintiffs claim damages being the difference between the price for which they had contracted to sell to the defendants and the price at which they were able to sell. 2 The defendants filed detailed defences on 31 March 2000, the principal one being that of the first defendant, which was partially incorporated by reference in a number of the other defences. In paragraph 33 of the first defendant's Defence, it did not admit that there was any wrongful repudiation by it of the contract for sale, being a contract entered into on or about 22 December 1999 for the sale and purchase of land at 37 Converys Lane, Wollongbar on which a factory is erected, and further alleged that if the first plaintiff had suffered any loss and damage it had failed to mitigate that, as the sale of the factory for $500,000 to the subsequent purchaser was not at a proper and a market place value, nor was it as a result of a properly conducted marketing campaign with reasonable care being taken by the first plaintiff to ensure that a proper and reasonable price was obtained for the property. Other defendants also raised the alleged failure of the plaintiffs to mitigate their damages in the same or essentially the same terms. 3 The proceedings have been the subject of extensive case management, as is usual in respect of matters in this List and, on 19 May 2000, I made orders by consent, which noted that the defendants did not intend to rely on any further witness statements other than those served upon the plaintiffs on 18 May 2000. These statements did not deal with the issue of mitigation. I also ordered, by consent, that the plaintiffs file and serve their witness statements on or before 17 June 2000. On 30 June 2000, Hunter J extended the time for the filing of the plaintiffs' statements to 7 July 2000 and directed the defendants to file their statements by 20 July 2000. Presumably the defendants had had further thoughts about the need for statements. 4 On 21 July 2000, Hunter J noted that the defendants had failed to comply with the earlier direction for the filing of statements and directed that any statements upon which the defendants sought to rely be filed and served by 18 August 2000. On the same day his Honour specially fixed the hearing for the week commencing 26 February 2001 and gave the usual directions under the Commercial List Practice Note. 5 The purpose of the giving of these directions was to ready the case for a hearing on the appointed day. The directions having been given, the Court expects the parties to comply with them and, if that is not possible, to apply to it for a variation. 6 On 16 February 2001, the matter was mentioned before Hunter J. His Honour noted that there was an outstanding issue in relation to discovery so far as the defendants were concerned and directed them to give discovery of the documents referred to in a certain document he identified by 5 pm on 21 February 2001. He also noted that Mr M.J. Fitzgerald, the solicitor for the defendants, had foreshadowed an application to vacate the hearing set down for 26 February 2001. He ordered that any such application be supported by affidavits and gave directions in that regard. His Honour did not note, and there was no suggestion to me that this matter was raised before him, that the defendants had any complaint about the plaintiff's discovery.