MK & JA Roche Pty Limited & Ors v Metro Edgley Pty Limited & Anor [2005] NSWSC 684

New South Wales Supreme Court

CITATION : MK & JA Roche Pty Limited & Ors v Metro Edgley Pty Limited & Anor [2005] NSWSC 684

HEARING DATE(S) : 17/6/05

JUDGMENT DATE : 11 July 2005

Equity Division JURISDICTION : Commercial List

JUDGMENT OF : Einstein J

DECISION : Application dismissed

CATCHWORDS : Court of Appeal remitter to trial judge of nominate issues - Unsuccessful party before Court of Appeal seeks special leave from High Court - Whether Court at first instance should proceed with remitter - Question of amended pleadings

LEGISLATION CITED : Supreme Court Act 1970 (NSW)

MK & JA Roche Pty Limited (First Plaintiff) Michael Kevin Roche, Christopher John Roche, William Timothy Roche, Kevin Michael Roche and Gabrielle Mary Roche (Second Plaintiffs) PARTIES : Metro Edgley Pty Limited (First Defendant) Multiplex Limited (Second Defendant)

FILE NUMBER(S) : SC 50069/04

Mr V Kerr (Plaintiffs) COUNSEL : Mr CRC Newlinds SC, Ms R Francois (Defendants)

Lane & Lane (Plaintiffs) SOLICITORS : Clayton Utz (Defendants)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Monday 11 July 2005

50069/04 MK & JA Roche Pty Limited & Ors v Metro Edgely Pty Limited & Anor

JUDGMENT 1 The judgment at first instance in these proceedings was delivered on 18 August 2004 [2004] NSWSC 744. The matter proceeded through an appeal, the judgments of the Court of Appeal being delivered on 3 May [2005] NSWCA 39 and on matters of costs and remission being delivered on 6 May 2005 [2005] NSWCA 146. 2 These judgments constitute the record and it is unnecessary to repeat the findings in or the orders made therein. 3 Metro Edgley is seeking Special Leave to appeal from the decision of the Court of Appeal to the High Court of Australia. 4 The issue presently raised before me concerns whether or not this Court should proceed to hear nominate issues notwithstanding the pendency of the Special Leave application or should simply stand the proceedings over until determination of the Special Leave application and, if successful, determination of the Appeal. 5 Metro Edgley contends that this Court should now make orders for the separate question of the issues remitted by the Court of Appeal, set the remitted issues down for hearing and give directions in relation to the matters sought to be raised by amended pleadings proposed to deal with what was described as the "ultimate" Sunset Date. 6 Counsel for the Roche parties has conveniently prepared a table (see below) setting out: · critical findings of the court of appeal; · matters remitted to this court for further factual findings; · contentions to be made by Metro Edgley on appeal, if special leave is granted. COURT OF APPEAL (*) MATTERS REMITTED (*) MATTERS ON SPECIAL LEAVE (**) Construction [47] Clause 2A(b) effects automatic termination without requiring notice (Suttor not fllwd) 2, 3Clause 2A(b) did not effect automatic termination [56] 21/5/04 letter was effective notice Election [62] Sargent v ASL sets out requirements for election [64]Was Roche aware of circumstances giving rise to right to terminate?8, 9Further factual findings unnecessary [63, 65]Did Roche exercise rights under contract? 8, 9Further factual findings unnecessary Estoppel [72] Conventional estoppel requires party estopped to have contributed to assumption [74]Did Roche play part in adoption of assumption? 4, 6Party estopped need not play part in adoption of assumption [72] Conventional estoppel requires detriment [74]Was Metro placed in position of significant disadvantage?5, 6Detriment is not necessary [78]Are guarantors bound by any estoppel? Operation of estoppel and election [76] Metro must prove election and estoppel: [76] a. estoppel precludes Roche from relying on cl 2A(b) but not on 21/5/04 letter 7Estoppel also precludes Roche relying on 21/5/04 letter [76] b. election precludes Roche relying on 21/5/04 letter