New South Wales Supreme Court CITATION : Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 610 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4528/97 HEARING DATE(S) : 30 June 2000 JUDGMENT DATE : 30 June 2000 Alanbert Pty Limited (P1) Bernoth Realty Pty Ltd (P2) PARTIES : Cecil Alan Bernoth (P3) Bulevi Pty Ltd (D1) Davhand Pty Ltd (D2) JUDGMENT OF : Hamilton J COUNSEL : C A B Fairbairn (P1-3) R K Weaver (D1 & 2) SOLICITORS : John Saroff & Company (P1-3) Watson Mangioni (D1 & 2) CATCHWORDS : PROCEDURE [81] - Supreme Court procedure - Practice under Supreme Court Rules - Preliminary rules and generally - Overriding purpose of Rules - Just, quick and cheap resolution of real issues. LEGISLATION CITED : Supreme Court Rules 1970 Pt 1 r 3, Pt 8 rr 8 & 16 CASES CITED : Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261 Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470 DECISION : Orders made. Liberty to apply reserved. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J FRIDAY, 30 JUNE 2000 4528/97 ALANBERT PTY LTD & ORS v BULEVI PTY LTD & ORS JUDGMENT HIS HONOUR: 1 Further consideration has been given this morning to the draft minutes of order in these proceedings. So far as order 1 in the short minutes is concerned, it has now been established by affidavit that there is no legal representation of the deceased estatae of Cecil Alan Bernoth ("Bernoth"). An application has been made for probate of his will, but that application has not yet been granted. His brother, Bertram Bernoth, has consented to be joined as a plaintiff (Supreme Court Rules 1970 ("the SCR") Part 8 r 8(2)) for the purpose of representing Bernoth's estate in the meantime. The present consent does not extend, in terms, to a consent to be appointed to represent the estate for the purposes of these proceedings (SCR Part 8 r 16(1)(b)) and a further consent in those terms will be furnished to the Court later today. I shall not make the orders contained in the short minutes in Court this morning, but I shall make orders as finally settled as soon as Bertram Bernoth's further consent is received, which I hope will be before the day is out. Those orders will be made in private chambers without the necessity of any attendance by the parties. 2 Mr Fairbairn, of counsel for the plaintiff, has asked that I excise from order 4 in the short minutes the words, "as these terms have been varied by the August 1995 deed" where they appear after the words, "effective and binding on the parties thereto according to their terms." Mr Fairbairn's objection was that, with the words objected to remaining, the declaration was in part a declaration that the March 1994 contracts had indeed been varied by the August 1995 deed, but without in any way defining the manner of that variation, which could lead to confusion. In my view there is a good deal in this submission. On short reflection in Court this morning, I am of the view and both counsel appear to agree, the situation is as follows. There was at least one variation effected by the August 1995 deed of the March 1994 contracts, ie, the superseding of special condition E(b) by a new provision as to the payment of interest. But there was not any variation of any of the terms of the March 1994 contracts which remain to be performed. And the obligations that remain to be performed flowing from the August 1995 deed flow from that deed alone, without any reference to or affectation of the March 1994 contracts. In those circumstances I think it better to excise the words as requested by Mr Fairbairn and I have done so. If by any chance it proves, as the matter progresses, that there is some relevant term of the March 1994 contracts which remains to be performed and which was affected by the August 1995 deed, that matter can be dealt with by application to the Court under the general liberty to apply, which I propose to reserve. 3 Orders 2 to 10 and 12 are intended to embody the entitlements of the parties as determined in my first judgment: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261. Order 11 is intended to embody the obligation which I found existed in my second judgment: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470. One additional matter to which I should draw attention is that no attempt has been made to distribute the various entitlements and obligations of the three plaintiffs, on the one hand, amongst those plaintiffs or of the two defendants, on the other, between those defendants. It is by agreement of the parties, adverted to in an earlier judgment, that both the plaintiffs and the defendants are content to have orders made in their favour or against them jointly and severally, rather than engaging in the additional expensive exercise of sorting out the difficult inter-relationships. This is an acceptable course, which I commend as an example of the way that parties, by good common sense, even in litigation as difficult as this, can expedite and cheapen the resolution of proceedings. 4 Orders 13, 14 and 15 are intended to effect the process of "cleaning up" the title to the remaining land, that is, the land comprised in folio identifier 13/857632. Those orders are made by consent. In particular, it should be noted that Mr Weaver of counsel has the instructions of Mr Lawrence and of Wayne Lawrence Pty Ltd, to make the agreement referred to in order 15. All the caveats involved are now spent or inappropriate, with one exception. That exception is No 5441795. The language of that caveat is diffuse to the point of incomprehensibility. It is on that ground that I have suggested that that caveat ought be removed and the caveators have consented to that course. However, it should be made plain that I have not made any ruling that the mortgage which, it appears from the confused wording, may underlie that caveat, does not create or give rise to a caveatable interest and, if it does, anything I have said and done is not intended to offer any barrier to the lodgment of an appropriate caveat to protect that interest. The only existing caveat that will remain on the title is Alanbert's caveat 5757521. It seems to me that that caveat is appropriate to protect the interest arising from the entitlement to have a mortgage which I have declared in order 11 to exist. That caveat appears to me to protect a valid caveatable interest. It has, therefore, been allowed to remain on the title. 5 The orders that I have made as to cross entitlements to various sums of money have been left in inchoate form. Further orders for the determination of those amounts can, of course, be made, if necessary, under the liberty to apply. However, I have deliberately, at this time, not set in motion the ungainly (if sometimes necessary) machinery of enquiries before the Master. I am hopeful that, now that the substantive rights of the parties have been spelt out in my judgments, the parties may be able to agree on the quantum of all of these entitlements or, if not, produce very limited questions that are contested in relation to them. I have taken this course because this litigation has already been long and complicated. It has given rise to complex factual and legal issues, but in the end involves only a comparatively modest amount. I bear in mind the overriding purpose of the SCR as now embodied in Part 1 r 3. I hope that the parties will be able to determine these amounts finally themselves, and I urge them, in the spirit of Part 1 r 3(2), to attempt to achieve agreement or to define limited issues. When those limited issues are apparent, I shall, in accordance with Part 1 r 3 endeavour to find the cheapest and simplest method of determining what comparatively small disputes remain. I hope that it will not be necessary to order proceedings before the Master. 6 The determination of the quantum of the entitlements declared in these orders will not, of itself, produce a final order for the payment of money. The next question will be whether or not the balance, as between the plaintiffs on the one hand and the defendants on the other, if it be in the plaintiffs' favour, is the subject of security under the mortgage referred to in order 11. That may raise difficult questions of appropriation, or the Court may need to determine how the various cross entitlements should be taken to interact. The parties should also give thought to these issues and see if there can be agreement, perhaps by compromise, as to what sum should be taken to be secured by the mortgage. If that cannot be done, the questions will, in due course, have to return to Court. Mr Fairbairn has pressed me to determine those questions today, but Mr Weaver says he is not prepared to deal with them. I suspect that both counsel are not really prepared to deal with these matters today (I am not suggesting that they ought to be) and, in any event, the Court has no time to determine them today. The plaintiffs' position, in the meantime, is undoubtedly protected by the declaration contained in order 11 and by the maintenance of Alanbert's caveat, as to which I have expressed the view that there is a caveatable interest properly to found the continuance of the caveat. 7 It remains to say that the proceedings are stood over for further directions before me at 9.30 am on Wednesday, 12 July 2000. …oOo… Last Modified: 09/26/2000 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.