Stockland (Constructors) Pty Limited & Anor v Darryl I Coombs & Ors [2004] NSWSC 928

New South Wales Supreme Court

CITATION : Stockland (Constructors) Pty Limited & Anor v Darryl I Coombs & Ors [2004] NSWSC 928 HEARING DATE(S) : 6/10/04 JUDGMENT DATE : 6 October 2004

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : Remitter Order made. Directions given.

CATCHWORDS : Part 72 references - Costs Stockland (Constructors) Pty Limited (First Plaintiff) Stockland (Properties) Pty Limited (Second Plaintiff) PARTIES : Darryl I Coombs Pty Limited (First Defendant) Philip J Flook Pty Limited (Second Defendant) Retail Design Group (International) Pty Limited (Third Defendant) FILE NUMBER(S) : SC 55046/99 Mr PL Dodson (Plaintiffs) COUNSEL : Mr LC Tan (Solicitor) (First and Second Defendant) Mr RD Newell (Third Defendant) Cohen & Krass (Plaintiffs) SOLICITORS : Minter Ellison (First and Second Defendants) James Legal Pty Limited (Third Defendants)

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

Einstein J

Wednesday 6 October 2004 ex tempore Revised 7 October 2004

55046/99 STOCKLAND (CONSTRUCTORS) PTY LIMITED & ANOR v DARRYL I COOMBS PTY LIMITED & Ors JUDGMENT – directions/orders

Application of first and second defendants 1 These proceedings have been listed on the application of the first and second defendants who have sought for the court today to enter judgment for them against the plaintiffs. As I understand the position Mr Dodson of counsel, who appears for the plaintiffs, accepts that consistently with the referee's decision and the reasons on the separate questions given in the judgment of 28 September 2004, it is appropriate for a judgment to be entered for the first and second defendants against the plaintiffs. His clients are content to simply abide the Court's decision as to when that judgment should be entered into. 2 Mr Tan has appeared for the first and second defendants. He accepts, as I understand it, that the question of costs as between his clients and the plaintiffs, is not capable of resolution today, for the simple reason that the third defendant [being a defendant to the second cross-claim brought by the first and second defendants] may seek costs from the first and second defendants. In that event the first and second defendants may seek by a Sanderson or Bullock order route to have an order made that the plaintiffs pay the costs of the first and second defendants of the proceedings, including so much of the costs of the second cross-claim, if any, as may be ordered to be paid by the first and second defendants to the third defendant. 3 For those reasons it seems to me to be quite untidy to presently do otherwise than have the transcript note that following the remission of the proceedings to the referee for clarification/reconsideration of the ambit of fees issue - see the decision of 28 September 2004 - and following the then finalisation of the matter upon an application to adopt the referee's decision/reasons following the remitter, it will be appropriate for all issues to be finalised. Apparently one set of issues are then likely to involve the first and second defendants, namely issues of costs. 4 There does not seem to me to be particular utility in the court today ordering judgment for the defendants against the plaintiffs. It may be noted that the first and second defendants will be excused from attendance at so much of the second tranche application for adoption of the referee's reasons as will involve only the third defendant and the plaintiffs. The plaintiffs and the third defendant, are directed to keep the first and second defendants notified of events so that the first and second defendants can be heard on the costs issues. It simply seems to me to be untidy to now make only one order and to leave a number of other matters outstanding and for all the valiant attempts by Mr Tan to persuade the court today to enter judgment for the first and second defendants against the plaintiffs [and to have what I would regard as a very novel and unusual order, which I have never made, that the plaintiffs pay the first and second defendants' costs on a party party basis but the first and second defendants have liberty to apply for an alternative costs order on three days notice], to my mind that form of order is only going to lead to confusion. The matter is therefore simply stood over for the purposes of the remitter and the first and second defendants may seek their verdict at the appropriate time after the referee's further reasons have come forward and been argued. Application of the third defendant 5 Counsel for the third defendant has sought a number of orders said to streamline the remitter and providing for matters such as the dates for submissions to be made to the referee by the parties, the date for the referee to submit his final report to the court and similar. 6 Mr Dodson, who appears for the first and second plaintiffs, has submitted that the answer to separate question 3 provided for in paragraph 33 of the judgment lacks sufficient precision or clarity to become the subject of an order. 7 In my view that submission is specious. Mr Dodson has sought to make submissions in relation to the matter. My own view is that the separate question having been carefully defined during the course of the hearing and full submissions having been taken from the parties, it is entirely inappropriate to regard the matter as still live in any sense. 8 Mr Dodson, as I understand him, has submitted that it is necessary for a formal order of remitter to be made, notwithstanding that the court in the judgment answered separate question 3 by holding that the referee's report should be referred back to the referee for clarification /reconsideration of the ambit of fees properly allowable to the joint venture in light his findings or varied findings following the remitter. 9 My own view is that if any formal order requires to be made which I doubt, it should be an order precisely in terms of the essence of paragraph 33 of the judgment and I propose to so order. 10 The Court orders as follows: