Vero Insurance Ltd v Tran [2008] NSWSC 166

New South Wales Supreme Court

CITATION : Vero Insurance Ltd v Tran [2008] NSWSC 166

HEARING DATE(S) : 22 February 2008

JUDGMENT DATE : 22 February 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Order for separate decision of questions made.

CATCHWORDS : PROCEDURE [107] – Supreme Court procedure – Practice under Supreme Court rules – Separate decision of questions – When appropriate.

CATEGORY : Procedural and other rulings

Integral Home Loans Pty Ltd v Interstar Wholesale Finances Pty Ltd [2006] NSWSC 1464 CASES CITED : Islamic Assoc of Western Suburbs Sydney Inc v Dr H R K Survery [2007] NSWSC 1425 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377

Vero Insurance Limited (P) Minh Ai Tran (D1) Thi Nguyen Phan (D2) PARTIES : Full Brick Homes Pty Ltd (D3) Martin Barratt (D4) Maureen Barratt (D5) Ian H Bailey (D6)

FILE NUMBER(S) : SC 5172/06

T G R Parker SC and P J Bambagiotti (P) COUNSEL : F C Corsaro SC (D1 & 2) Submitting appearances (D3-6)

Mills Oakley Lawyers (P) SOLICITORS : Just in Case Legal (D1 & 2) Kennedys Law Firm (D3-5) Thomson Playford Lawyers (D6)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 22 FEBRUARY 2008

5172/06 VERO INSURANCE LIMITED v MINH AI TRAN & ORS JUDGMENT 1 HIS HONOUR: As a result of discussion yesterday afternoon, the idea was promoted that several days of evidence which may or may not be necessary could be avoided by an order for separate decision, the order being an order that all questions arising out of par 11 of the defence should be decided separately from and after the decision of the other questions in the proceedings. 2 Yesterday afternoon, that suggestion was warmly endorsed on both sides of the bar table. This morning, Mr Parker, of Senior Counsel for the plaintiff, is expressing reservations about it. He is suggesting that the questions in par 11 may be entangled with the other questions in that, although they are expressed to be raised in support of an allegation of frustration, there are circumstances in which they could conceivably go to the existence or non existence of a binding contract. 3 Certainly, as it is at present pleaded and in a proposed amendment that has been brought forward by Mr Corsaro, of Senior Counsel for the first and second defendants, the matters in par 11 are raised in support of a contention of frustration, which can only arise if a binding contract exists. 4 Mr Corsaro has this morning, on behalf of his clients, assured the Court that there is no intention to raise the matters in par 11, actual or proposed, except in support of an allegation of frustration. He has specifically eschewed relying upon them in support of an argument that there was no contract by reason of any mistake or by reference, if it be a separate matter, to an argument under cases such as McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 as to the existence of any subject matter of the agreement at the time it was made. Furthermore, Mr Corsaro eschewed any intention on the first and second defendants' part to lead further evidence at a subsequent trial, for example, of Mr Tran, as to the subject matter of the contract. 5 As I have indicated on past occasions, I am a Judge who is extremely cautious about ordering the separate decision of questions and I am aware of the warnings of appellate courts in this regard. I am aware from my own experience of litigation of the dangers that may arise. And see Islamic Assoc of Western Suburbs Sydney Inc v Dr H R K Survery [2007] NSWSC 1425 at [4], [5]: "[4] The appellate approach to the separate decision of questions has in general terms been to counsel caution in making such orders. In Tepko Pty Limited v Water Board (2001) 206 CLR 1, in a joint judgment, Kirby and Callinan JJ said at [168], [170]: 'The attractions of trials of issues, rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap. ……… Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.' That in general terms is the approach that I have taken in dealing with applications of this sort: see Silvia v Commissioner of Taxation [1999] NSWSC 299; RSL Veterans' Retirement Villages Ltd v NSW Minister For Lands [2006] NSWSC 112. In the latter case at [6], [7] I said: '[6] It appears to me that the case is likely to achieve an earlier complete resolution by refusing the motion than by dividing the case into two parts for separate decision ...