Williams v Calivil Park Holsteins Pty Ltd [2008] NSWSC 879

New South Wales Supreme Court

CITATION : Williams v Calivil Park Holsteins Pty Ltd [2008] NSWSC 879

HEARING DATE(S) : 25 August 2008

JUDGMENT DATE : 2 September 2008

JUDGMENT OF : Malpass AsJ

DECISION : The first defendant's Notice of Motion dismissed; first defendant to pay the costs of that Notice of Motion; plaintiffs' Notice of Motion stood over to trial; costs of plaintiffs' Notice of Motion reserved; any other reserved costs to be dealt with either by trial judge or a registrar.

CATCHWORDS : COMMON LAW - leave to file a cross-claim - application for summary judgment with the damages to be assessed.

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

CATEGORY : Principal judgment

CASES CITED : Ainsworth v Burden [2005] NSWCA 174

Ian Michael Williams (First plaintiff) Jillian Mary Williams (Second plaintiff) Angus Carl Williams (Third plaintiff) PARTIES : Calivil Park Holsteins Pty Ltd (First defendant) Dennis Culton (Second defendant) Sue Culton (Third defendant) Jayson Paul Culton (Fourth defendant)

FILE NUMBER(S) : SC 11467/08

COUNSEL : LM Wilson (Plaintiffs) CD Wood (First defendant)

SOLICITORS : Lumleys (Plaintiffs) Morrison and Sawers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

Tuesday 2 September 2008

11467/2008 Ian Michael Willliams & Ors v Calivil Park Holsteins Pty Ltd & Ors

JUDGMENT 1 HIS HONOUR: The plaintiffs have brought proceedings against three defendants. They now only seek to proceed against the first defendant. 2 The proceedings have been before the Court on many occasions. The statement of claim seeks relief in respect of a number of matters. Some have already been dealt with by the Court. On 7 July 2008, the Court dealt with the claim for possession of the subject land and some other matters. What remains are monetary claims for arrears of rent, arrears of money under a cow lease and mesne profits. 3 A defence only was filed by the first defendant on 2 May 2008. There was no cross-claim filed. 4 Directions as to the progress of the proceedings have been made from time to time. There has been non-compliance with orders and directions by the first defendant. The matter became before the Registrar on 7 August 2008. On that day, it was expected that the Registrar would allocate a date for hearing of the plaintiffs' claim. 5 On 7 August 2008, the first defendant filed in court a Notice of Motion. It seeks leave to file a cross-claim. The Registrar adjourned the proceedings to 25 August 2008. The plaintiffs have also brought a Notice of Motion which seeks summary judgment. 6 The proposed cross-claim seeks, inter alia, to claim damages for breach of a bore agreement and a release from obligations to pay rent. There are three aspects to the proposed claim. The content thereof raises material that is inconsistent with what is pleaded in the defence. (I shall return to that matter in due course.) It seems to me that a purpose of the cross-claim is to allow the first defendant to agitate issues concerning lease terms which were not pleaded in the defence. 7 Both Notices of Motion were referred for hearing on 25 August 2008. The Court was given an estimate of hearing time of one hour. In fact, the hearing time blew out to more than two hours. There was a consensus that the first defendant's application be first heard. I shall now turn to that application. 8 A tactical decision was made to run the first defendant's application without the support of any affidavit material. The Court was taken to authority (including Ainsworth v Burden [2005] NSWCA 174). Although two affidavits were filed in court (which were said to give support to the proposed cross-claim), they were not relied on in this application. Prior to the luncheon adjournment questions were raised during argument concerning discretionary considerations (including delay and explanation for delay). At that time, the stance was taken that the first defendant did not need to adduce evidence on these matters. After the luncheon adjournment, the first defendant was allowed by consent to re-open for the purpose of relying on an affidavit of Stuart Edward Lowe. It was said to address these discretionary considerations. In my view, it falls well short of performing that task. 9 Mr Lowe is the solicitor now having the conduct of the matter for the first defendant. He received instructions on 30 May 2008. The matter of the delay in the filing of the cross-claim is not directly addressed in his affidavit. Instead, it largely informed as to the difficulties of getting instructions and the fact that the proceedings have given rise to the need for him to attend to a range of matters. 10 The delay is of significance. It is in excess of three months and the application is now brought at a time when the plaintiffs seek to bring proceedings to finality. Why the matter of the filing of the cross-claim was not addressed until August 2008 is not satisfactorily explained. It seems to me that, in the circumstances of this case, a satisfactory explanation is a matter of importance. It may be that a purpose of the application was to bring about further delay in the disposition of these proceedings. 11 The granting of the relief sought is the subject of a discretionary power. The first defendant bears the onus of satisfying the Court of the entitlement to the relief sought. In my view, the first defendant has fallen well short of demonstrating that onus. 12 In dealing with such an application, the Court is concerned that the dictates of justice are best served. In my view, they are not best served by the granting of the first defendant's application. 13 The plaintiffs put their opposition to the granting of leave in the following terms: "5. The plaintiffs oppose the filing of the proposed amended cross-claim for the following reasons: (a) The First Defendant has not established a sufficient reason for an extension of time being granted. (b) The delay in filing the cross-claim is not explained, in the face of substantial non-compliance in these proceedings. (c) An appropriate order for costs holds little weight for the plaintiffs who are owed a substantial amount from the First Defendant in these proceedings and with the background of substantial non-compliance to date. (d) If the filing of the cross-claim succeeds, it will cause substantial prejudice to the plaintiffs because it will slow the proceedings, in circumstance where the plaintiffs are continuing to pay in the range of $19,000 per month to service the property, plus legal costs, with no money flowing from the defendants despite orders of the Court to make such payments. 6. Examples of ways in which it will slow the proceedings include: (a) The plaintiffs will have to return to the timetable originally set by Registrar Bradford for the filing of evidence in these proceedings to prepare for a hearing. (b) An application for security of costs for the cross-claim will be made and subsequently heard. (c) An amendment to the Defence will be necessary as the cross-claim is inconsistent with it in some respects. (d) A hearing date will not be set until the evidence is on and this may not be for some time as the plaintiffs will have to put on a defence and then file evidence in support of it." 14 I consider that the matters of delay and lack of satisfactory explanation for that delay are matters of weight in the circumstances of this case. Indeed, I take the view that they suffice to dispose of this application. 15 Although the first defendant says that it is now ready to take a hearing date, a granting of its application will necessarily occasion further delay. It is said that the first defendant may be impecunious. Whatever the position may be, the plaintiffs propose to make application for security for costs if leave is granted. The first defendant has informed the Court that any such application will be resisted. Also, inter alia, it appears that the plaintiffs would have to face addressing recently filed affidavit material (including material filed on the day of the hearing). 16 I will leave aside a consideration of the viability of the proposed cross-claim as it was not a matter raised by the plaintiffs. However, the question of the inconsistency between the proposed cross-claim and the defence was debated during argument. In my view, this is another matter that mitigates against the granting of the application. 17 I now move to the plaintiffs' Notice of Motion for summary judgment. It is well established that the remedy of summary disposition is only granted in what might be described as clear cases. The onus rests with the party seeking summary disposition. The remedy of summary disposition is discretionary in nature. 18 The circumstances of this application are somewhat unusual. The plaintiffs are not seeking a judgment in a sum certain. What is sought is the entry of judgment with damages to be assessed. 19 The hearing was conducted on the basis that such relief was available to the plaintiffs. No debate took place concerning this matter. 20 It may be observed that r 16.7 of the Uniform Civil Procedure Rules 2005 enables the giving of judgment for damages to be assessed and for costs where default judgment is sought in respect of a claim for unliquidated damages. 21 In this case, the plaintiffs rely on r 13.1. It enables the Court to give such judgment for the plaintiffs or make such order on the claim or that part of the claim as the case requires. 22 In the present case, it is unnecessary to dwell further on this matter. 23 The defence contains, inter alia, the following: "6 As to paragraph 14, the First Defendant admits that rent has not been paid, but says that there is a genuine dispute between the parties as to the amount of rent that was payable pursuant to the lease as amended. … 8 As to paragraph 16 the First Defendant admits that some payments have not been made, but says that there is a genuine dispute between the parties as to the amount that is due and payable." 24 Paragraph 14 of the statement of claim alleges a failure to pay rent in a said sum. The pleading of the lease provisions appears in earlier paragraphs of the statement of claim. Paragraph 16 of the statement of claim contains a similar allegation in relation to lease amounts due under the cow lease. 25 The first defendant has contended that paragraphs 6 and 8 put in issue matters concerning the provisions of the lease. In my view, they do not. I consider that they are poorly pleaded and do little more than attempt to raise an issue as to the quantification of the amounts claimed for rent and what is due under the cow lease. 26 If the first defendant does wish to raise issues concerning those matters, it would be necessary for it to make a successful application to amend the defence. No such application has been made and there was no indication that such an application would be made in the future. As earlier mentioned, it seems that a purpose of the proposed filing of the cross-claim is to allow an agitation of the issues without amending the defence. 27 During the protracted process of the hearing, brought by the plaintiffs, a number of applications were made without notice by the first defendant (including adjournment applications and attempts to rely on two affidavits in respect of the plaintiffs' Notice of Motion). I shall expressly mention one of those applications. The two affidavits were the two earlier mentioned which were not sought to be used to support the first defendant's Notice of Motion. One had been sworn early in August and the plaintiffs had not been made aware that it would be relied on in the application for summary judgment. The other had been served on the day of the hearing and counsel for the plaintiffs had not had the opportunity of reading it. The application was rejected. 28 I should add that the application was made late in the day and that no earlier application had been made for adjournment. 29 It seems to me that the granting of summary judgment at this stage would have little utility in this case and may cause problems for the plaintiffs. During the course of the hearing, the first defendant made concessions (that the lease had been breached, and that it came to an end on 31 August 2007) which suffice to limit issues for what remains to be heard on the current pleadings. It was accepted by the first defendant that these concessions could not be withdrawn. 30 Apart from a concern as to the suitability of the granting of summary judgment in a case such as this, I am also concerned that a referral for assessment of damages may cause problems for the plaintiffs. There will clearly be issues between the parties as to whether or not part of the claim falls within the category of damages. The first defendant has raised such matters during the hearing. 31 In the circumstances of this case, I consider that the dictates of justice are best served if the question of summary judgment is deferred to the trial. 32 The first defendant's Notice of Motion is dismissed. The first defendant is to pay the costs of that Notice of Motion. The plaintiffs' Notice of Motion is stood over to the trial. I consider that the costs of such a Notice of Motion are better addressed at the trial. Accordingly, they are reserved. Any other reserved costs can be dealt with either by the trial judge or a registrar. **********