ACD Tridon v Tridon Australia [2002] NSWSC 992

New South Wales Supreme Court

CITATION : ACD Tridon v Tridon Australia [2002] NSWSC 992 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 5738/01 HEARING DATE(S) : 23 October 2002 (in Chambers) JUDGMENT DATE : 25 October 2002

ACD Tridon Inc (P/R) Tridon Australia Pty Ltd (D1/A) PARTIES : Richard Wellesley Lennox (D2/A) Sandra Lennox (D3/A) Tridon New Zealand Ltd (D4/A) JUDGMENT OF : Austin J

T F Bathurst QC with TGR Parker (P/R) COUNSEL : M S Jacobs QC with P Bambagiotti (D1/A,D2/A,D4/A) S D Robb QC, and later M S Jacobs QC with P Bambagiotti (D3/A) Allens Arthur Robinson (P/R) SOLICITORS : Cutler Hughes & Harris (D1/A,D2/A,D4/A) Michell Sillar (D3/A) CATCHWORDS : PRACTICE AND PROCEDURE - reference out under Part 72 - consent to reference out LEGISLATION CITED : Supreme Court Rules Pt 72 DECISION : See last paragraph

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

FRIDAY 25 OCTOBER 2002

5738/01 ACD TRIDON INC V TRIDON AUSTRALIA PTY LTD & ORS SUPPLEMENTARY JUDGMENT 1 HIS HONOUR: These brief reasons for judgment are supplementary to my reasons for judgment published on 4 October 2002. At the hearing of the application which was the subject of my earlier judgment, Mr Marcus Jacobs QC, senior counsel for the first, second and fourth defendants, embraced a proposal that the subject matter of the proceeding be referred to the Hon John Clarke QC as referee under Part 72 of the Supreme Court Rules. The third defendant, Sandra Lennox, had been separately represented at an earlier stage in the hearing. In preparing my reasons for judgment, I took the view that Mr Jacobs' support for the Part 72 procedure was expressed on behalf of the other defendants but not on behalf of Mrs Lennox. 2 There was a brief hearing on 16 October 2002 for the purpose of making orders. Mr Jacobs QC informed me that his support for the Part 72 procedure was given on behalf of Mrs Lennox, for whom he was at that stage acting, as well as on behalf of the other defendants. Mr Parker, counsel for the plaintiff, agreed. The issue affected the text of the orders that I subsequently made. 3 Mr Jacobs QC has now drawn my attention to some parts of my reasons for judgment dated 4 October 2002 that are incorrect, in light of this matter. In paragraph 209 of my reasons for judgment I said: In the present case my decision is influenced by what I take to be the consent of all parties other than Mrs Lennox to a reference out, under Part 72, of the entire dispute (except for the matters presently before Mr Clarke QC for arbitration under the Distribution Agreement), not merely the non-arbitrable part. I exclude Mrs Lennox because, at the relevant stage in the proceeding, she was not represented in court, having been excused from attendance. Since she is not a party to either of the arbitration agreements, she is amenable to an order under Part 72 without her consent. 4 At the end of paragraph 223, I said: If, however, I proceed under Part 72, I shall do so with the consent of Tridon, TAPL, Mr Lennox and TNZL, and I shall be in a position to make orders binding Mrs Lennox, subject to whatever protective provisions may be appropriate to take into account her limited interest. 5 The correct position is that all of the defendants consented to the reference out under Part 72, and there was no need to exclude Mrs Lennox. The subsequent order for reference out under Part 72 was consequently made with the consent of all defendants, and was not imposed on Mrs Lennox without her consent. 6 In paragraph 238 I expressed the view that it would not be unduly onerous on Mrs Lennox to make an order referring out the entire dispute under Part 72 because, if she took the view (not being a party to the arbitration agreements) that she ought not to be required to attend the whole of the hearing before the referee, she could apply to make appropriate arrangements with the referee. I said that the adoption of the Part 72 procedure did not necessarily impose on her the obligation to attend or be represented in parts of the overall dispute resolution process that did not directly involve her. Those observations remain true. I would add, however, that the fact of her consent to the Part 72 procedure reinforces my conclusion that it would not be unduly onerous on her. 7 My view is that the confusion that arose, at and after the hearing, as to whether Mr Jacobs QC consented to the Part 72 procedure on behalf of Mrs Lennox, who had previously been represented by other counsel, has affected the text of my judgment of 4 October 2002 in the manner outlined above, but it has in no way affected the reasoning or conclusions that I expressed in the judgment, which were subsequently reflected in my orders. **********