Stockland (Constructors) Pty Ltd & Anor v Darryl I Coombs Pty Ltd & 2 Ors [2002] NSWSC 721

New South Wales Supreme Court

CITATION : Stockland (Constructors) Pty Ltd & Anor v Darryl I Coombs Pty Ltd & 2 Ors [2002] NSWSC 721 FILE NUMBER(S) : SC 55046/99 HEARING DATE(S) : 9/08/2002 JUDGMENT DATE : 9 August 2002

Stockland (Constructors) Pty Ltd (First Plaintiff) Stockland (Properties) Pty Ltd (Second Plaintiff) PARTIES : Darryl I Coombs Pty Ltd (First Defendant) Philip J Flook Pty Limited (Second Defendant) Retail Design Group (International) Pty Limited (Third Defendant) JUDGMENT OF : Einstein J

COUNSEL : DE Grieve QC, PL Dodson (Plaintiffs) AW Street SC, Mr R Newell (3rd Defendant) SOLICITORS : Cohen & Krass (Plaintiffs) Bull, Son & Schmidt (3rd Defendant) CATCHWORDS : Pleadings - Amendment Fair Trading Act 1985 LEGISLATION CITED : Supreme Court Rules Trade Practices Act 1974 CASES CITED : Bruce v Odhams Press Ltd (1936) 1 KB 697 Little v Law Institute of Victoria (1990) VR 257 DECISION : Leave to replead particular paragraphs

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CONSTRUCTION AND TECHNOLOGY LIST

Einstein J

Friday 9 August 2002 ex tempore Revised Thursday 29 August 2002

55046/99 STOCKLAND (CONSTRUCTORS) PTY LTD & ANOR v DARRYL I COOMBS PTY LTD & 2 ORS JUDGMENT 1 There is before the Court a notice of motion pursuant to which the plaintiffs in the proceedings, who are cross-defendants to a cross-claim, seek judgment in respect of the causes of action set out in paras 16 to 25 of the amended cross-claim pursuant to Pt 13 rr 3 and 5 of the Supreme Court Rules, and in the alternative that paras 16 to 25 inclusive of the amended cross-claim be struck out pursuant to Pt 15 r 26 of the Supreme Court Rules. 2 The manner in which the motion has been heard commenced with Mr Grieve QC taking the Court to the relevant materials in the form of the amended cross-claim of 7 May 2002 and, in terms of it being necessary for the Court to follow the proceedings, by taking the Court to the first amended summons filed 8 February 2002. 3 Mr Street SC, for the third defendant, which is the relevant cross-claimant in terms of the notice of motion, then sought to rely upon a number of materials going to matters of fact. 4 Those materials were conveniently identified in the transcript then being taken of the argument as MFI R1. They extended to include an advice by Mr Amerena, barrister at law, and sundry other materials. The Court made clear that in terms of so much of the motion as effectively involved a pleading issue, it was not persuaded that those materials were such as to permit them into evidence on the application and hence they were marked for identification only. 5 The additional materials that Mr Street sought to rely upon included a request for particulars, which became exhibit R1, together with the response, and the request, having been made on 20 June 2002, was responded to on 31 July 2002. 6 Additionally, Mr Street sought to hand up a document which in a careful attempt to identify and match the now particulars to the previous form of amended cross-claim, became MFI R3. 7 The background, as pleaded by the plaintiffs to the proceedings, clearly emerged from the form of the first amended summons. The plaintiffs' contentions fairly clearly outlined the causes of action upon which the plaintiffs rely for the purposes of pursuing their claims to damages, interest and costs. I do not intend in this interlocutory judgment to repeat the plaintiffs' contentions but it seems fairly plain from these contentions that, at least from the plaintiffs' side of the bar table, the problems leading to this litigation arose some considerable time ago and arose in relation to a shopping centre, which became known as the Earlville Shopping Centre and was constructed in Queensland. 8 A short outline by way of a summary of the facts, which the Court notes is not necessarily accepted at all by the defendants, was prepared by Mr Dodson of counsel and in that summary, albeit for the purposes of a submission as to background, the following appeared: