New South Wales Supreme Court CITATION : Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 296 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4528/97 HEARING DATE(S) : 11 April 2002 JUDGMENT DATE : 11 April 2002 Alanbert Pty Limited (P1) Bernoth Realty Pty Ltd (P2) PARTIES : Bertram Bernoth (P3) Bulevi Pty Ltd (D1) Davhand Pty Ltd (D2) JUDGMENT OF : Hamilton J COUNSEL : A Fairbairn (P1-3) W Lawrence, a director, by leave (D1 & 2) SOLICITORS : John Saroff & Company (P1-3) W Lawrence, a director, by leave (D1 & 2) CATCHWORDS : PROCEDURE [483] - Judgments and orders - Varying and setting aside - General rules - Rehearing - Power to withdraw reasons for judgment before orders made. CASES CITED : Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289 DECISION : Leave granted to defendants to move for withdrawal of part of reasons for judgment [2002] NSWSC 289. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 11 APRIL 2002 4528/97 ALANBERT PTY LTD & ORS v BULEVI PTY LTD & ANOR JUDGMENT 1 HIS HONOUR: This matter was before me this afternoon for the purpose of making orders consequent upon reasons for judgment that I gave on Tuesday: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289 ("my sixth judgment"). The parties have discovered that there were some factual matters outstanding that went to the form of the orders. One of those matters has been the subject of agreement, in that dates of sale of Lots 11 and 12 have been discovered and agreed to, it being agreed that Lot 11 was settled in August 1998 and Lot 12 was settled on 27 January 1999. A rough form of accounting which would enable the calculation of interest on the amounts totalling $232,000 that were received in respect of those lots has been drawn up but no figures have been inserted in it. So, quite apart from what will follow, orders cannot be made today as the necessary interest calculations have not been laid before the Court. 2 After I delivered my sixth judgment on Tuesday, the Court received, and there was sent to the plaintiffs, a further written submission by Mr Lawrence, a director, who, by leave, appears for the defendants. That covered three points that he had raised with me during the course of the hearing on Tuesday. 3 One of those matters was the question of the tender or non tender in support of the plaintiffs' case of contracts for the sale of Lots 11 and 12 to the plaintiffs. Those contracts were tendered before me, but rejected and marked for identification MFI 9 and MFI 10. Nothing that Mr Lawrence has said to me today concerning this aspect of the matter leads me to think that my judgment was anything but correct and that portion of the matter may simply rest there: see my sixth judgment [10]. 4 The second matter he has raised is that he seeks an opportunity, despite my sixth judgment, to have a further opportunity to agitate the second matter that he raised and which I stated in that judgment (at [8]) that I did not understand. That was a claim that conduct of the plaintiffs which caused or contributed to the sale by the mortgagee of Lots 11 and 12 should somehow or other be taken into account as negativing or diminishing the quantum of the order to be made in the plaintiffs' favour relating to the proceeds of those sales. Although I am hesitant to do so at the tail end of these long running proceedings, and despite the vigorous protest of Mr Fairbairn, of counsel for the plaintiffs, I have come to the view that the defendants should be given one last opportunity to raise this matter. I do not propose at the moment to withdraw my reasons in respect of this aspect of the matter, but I do propose to allow the defendants to apply before me at 10 am on 22 April 2002 for the withdrawal of that portion of my sixth judgment that is relevant to that subject matter. I do this because, by reason of my lack of comprehension of the point or points which Mr Lawrence was seeking to raise, I feel that I may not have given him full opportunity to draw attention to the material which is already, I am told, virtually all in evidence, by reference to which he sought to make this point. I should not wish there to be any risk that there was any procedural unfairness towards a litigant at the end of this long drawn out litigation and, whilst I regret any prolongation of it, bearing in mind that the matter must go over for another day for the making of orders, I propose to allow an application of the nature I have outlined to be agitated on that day. I shall in due course give directions relating to the bringing forward of a notice of motion and as to the evidence to be used on that application. 5 The third matter raised by Mr Lawrence in his submission relates to the retainer of their solicitors by two of the plaintiffs, namely, Bernoth Realty Pty Limited and Bertram Bernoth. The latter has been appointed to represent the estate of the late Alan Bernoth for the purposes of the proceedings. At the moment I do not know, on the material available, what degree there is of reality in these matters. The possibility of the questions arising follows from the fact that recent evidence has shown that Mr Arvo Pikkat is now a director of Bernoth Realty Pty Limited and that he now says that he is an executor of the will of the late Alan Bernoth. 6 Changes in the directorship or ownership of a company do not, of course, terminate or otherwise of themselves affect the validity of a retainer which a company has already given to solicitors. I see no reason to doubt that retainer at the moment, nor in a sense do I see any utility from the point of view of these proceedings in any challenge to it. Difficult as it may be for a litigant in person, if any application is to be made concerning retainer it must be made in the appropriate way. I do not encourage any motion in that regard, but, if there is to be any, it may be brought forward before me on 22 April 2002. 7 Concerning the representation of the late Alan Bernoth's estate, the Court has itself a little more responsibility. It was the Court, which, at the parties' instance, appointed Bertram Bernoth, the late Alan Bernoth's brother, to represent his estate, at a time when it appeared that there was no personal representation of the estate. Again, the appointment of an executor subsequent to that time would not bring to an end the representation order made for the purposes of these proceedings, which could continue to coexist with the formal representation of the estate for other purposes once that representation was granted. However, as the Court has just learnt that there is an executor, even though it is very late in the day with little remaining to be done in the proceedings, it is my view that the executor should be given an opportunity to make any submission to the Court that he wishes in relation to the representation of the estate now that he is executor. I have asked Mr Lawrence to write to Mr Pikkat drawing his attention to these matters and inviting him to make any submission to the Court that he is minded to make, again on 22 April 2002. 8 The orders of the Court will therefore be: 1 I grant leave to the defendants to apply before me at 10am on 22 April 2002 for an order for the withdrawal of the portion of my reasons for judgment of 9 April 2002 relating to the proceeds of sale of Lots 11 and 12 and for an order concerning the retainer of the plaintiffs' solicitors. 2 I direct that on or before 17 April 2002 the defendants deliver to the plaintiffs and to my Asociate any form of motion to be used on 22 April 2002, a list of any existing evidentiary material to be used on that day and any further affidavits or fresh documents to be so used. 3 I direct the plaintiffs to deliver to the defendants and my Associate on or before 19 April 2002 a list of any existing evidentiary material to be used and copies of fresh affidavits or documents to be used on 22 April 2002. 4 The proceedings are generally are stood over to the same time before me. There should be a calculation available at that time that will permit the monetary judgment to be entered. ********** Last Modified: 05/29/2002 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.