New South Wales Supreme Court CITATION : Unconventional Conventions Pty Ltd v Accent Oz Pty Ltd [2004] NSWSC 1050 HEARING DATE(S) : 27 October 2004 JUDGMENT DATE : 27 October 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Second mediation ordered in same proceedings. CATCHWORDS : PROCEDURE [80] - Supreme Court procedure - Jurisdiction and generally - Other matters - Power to order mediation - Whether power should be exercised over opposition of a party - Whether second mediation should be ordered when first compulsory mediation has failed - Relevant considerations. LEGISLATION CITED : Supreme Court Act 1970 s 110K CASES CITED : Unconventional Conventions Pty Limited v Accent Oz Pty Limited (In Liquidation) NSWSC 15 September 2004 White J unreported Unconventional Conventions Pty Limited (P) PARTIES : Accent Oz Pty Limited (In Liq) (1D) David Blogg (2D) Karyn Rae Matterson-Blogg (3D) FILE NUMBER(S) : SC 2586/02 D P Robinson SC (P) COUNSEL : No appearance (1D) No appearance (2D) In person (3D) Access Business Lawyers (P) SOLICITORS : Gordon & Johnstone (1D) In person (2D) In person (3D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 27 OCTOBER 2004 2586/02 UNCONVENTIONAL CONVENTIONS PTY LIMITED v ACCENT OZ PTY LIMITED & ORS JUDGMENT 1 HIS HONOUR: These proceedings have been part heard before me and are fixed for further extensive hearing commencing on 22 November 2004. The third defendant, who is appearing in person, has this morning applied to me for an order that the proceedings be referred to mediation. This is despite the fact that the proceedings have been referred to mediation already and that mediation was not successful. The circumstances in which the application is made is that I have been informed by the parties this morning that there are without prejudice negotiations proceeding among the parties for the settlement of the proceedings. 2 Mr Robinson, of Senior Counsel for the plaintiffs, has opposed the making of an order for a further mediation. The grounds on which he has done so are twofold. The first is that of expense. The second is that his instructions are that his client will not budge in negotiations from a position which has already been put to the second and third defendants. It is up to those parties to accept or reject the offer; and a further mediation would be pointless. 3 As to the ground of cost which Mr Robinson has advanced, I am afraid that I am unable to perceive that the costs of an afternoon mediation and preparation for it are a great consideration in proceedings the trial of which is taking weeks. As to what is said to be the inflexibility of his client's position, if that were to vary it would not be the first time that apparently inflexible positions have varied during the course of mediations, including compulsory mediations. Those considerations do not, therefore, in my view, preclude an order for a further mediation. I should say, however, that the Court ought not lightly order a second compulsory mediation in a matter in which one has already taken place. 4 However, as I perceive it, the circumstances in these proceedings have changed very considerably since the last mediation took place. Among other factors, it appears to me on what I know that the financial position of the second defendant and the third defendant has worsened considerably since the earlier mediation, in part at least by reason of the conduct of these proceedings. Secondly, there has been a judgment by White J on an application concerning interlocutory relief: Unconventional Conventions Pty Limited v Accent Oz Pty Limited (In Liquidation) NSWSC 15 September 2004 unreported. In that judgment his Honour refused relief to freeze funds of the third defendant on the basis that those funds consisted in whole or in part of funds imprinted with a trust in favour of the plaintiffs. His Honour held that there was insufficient basis for an injunction of that type. His Honour also made it plain in dealing with that fund on the basis of Mareva relief that the third defendant should be able to continue to have access to the funds for necessary expenses over the protest of the plaintiff and varied the relief accordingly. 5 I mention these matters to demonstrate that a great deal of water has flowed under the bridge since the first mediation was held, perhaps sufficient for a compromise to be reached in the framework of a mediation on this occasion which was not possible before. It is also, of course, an important factor in my making the order that I propose to make that the parties have already gone into voluntary negotiations for the settlement of the proceedings, despite the earlier failure to achieve a settlement. 6 In those circumstances, I propose to order under s 110K of the Supreme Court Act 1970 that these proceedings be referred for mediation. I make that order despite the lack of consent on the plaintiffs' part. 7 Registrar Berecry of this Division of the Court has agreed to make himself available to conduct the mediation at 2pm on 10 November 2004. The parties have agreed that if there is to be a mediation, it should be a mediation by Registrar Berecry and have done so expressly acknowledging that there is no objection arising from Registrar Berecry having conducted the earlier unsuccessful mediation. 8 The costs of the application will be reserved. 9 I direct that the proceedings be stood over to 17 November 2004 at 9.30am before me for further directions. I direct that the third defendant serve on the plaintiffs any document by which she intends to further her application to rely on a cross claim by noon on 15 November 2004. ********** Last Modified: 11/17/2004 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.