Andrew Edward Christian Kloster v Xinc Financial Services Pty Limited & Ors [2008] NSWSC 287

New South Wales Supreme Court

CITATION : Andrew Edward Christian Kloster v Xinc Financial Services Pty Limited & Ors [2008] NSWSC 287

HEARING DATE(S) : 28/03/08 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

EX TEMPORE JUDGMENT DATE : 28 March 2008

DECISION : Application for separate questions order dismissed

CATCHWORDS : Separate questions

CATEGORY : Procedural and other rulings

Andrew Edward Christian Kloster (Plaintiff) PARTIES : Xinc Financial Services Pty Limited (First Defendant) Xinc Services Pty Ltd (Second Defendant) Jennifer Ann Nielsen (Third Defendant)

FILE NUMBER(S) : SC 50169/07

COUNSEL : Mr M Condon (Plaintiff) Mr A Moses SC, Mr Y Shariff (Defendants)

SOLICITORS : Sparke Helmore (Plaintiff) Mr Cullough Robertson (Defendants)

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

Eisntein J

Friday 28 March 2008 ex tempore Revised 1 April 2008

50169/07 Andrew Edward Christian Kloster v Xinc Financial Services Pty Limited & Ors JUDGMENT 1 In these proceedings the plaintiff by amended notice of motion filed on 28 March 2008 seeks a number of orders, including for present purposes, an order that the question of the defendants' liability to the plaintiff be determined separately from the question of what damages, if any, the defendants are liable to pay to the plaintiff. 2 The defendants have indicated that they do not require the Court to give any reasons for a decision on the separate determination issue. Mr Condon of Counsel appearing for the plaintiff has not been in a position to obtain express instructions in relation to the issue but has been in a position to inform the Court that his client does not seek, for such reasons as are given, to travel through the well established principles which inform the principled approach to the exercise of the discretion. He has indicated that it is unnecessary for the Court to, in announcing its reasons, do otherwise than, as I have understood it, give the principal and essential reasons for the decision to which the Court has come. 3 It seems to me, as an aside, that where there are an enormous number of applications for separate question orders which come before a Commercial List on Fridays, whilst of course the parties are perfectly entitled to, in the usual way, expect reasons to be given, there are cases where it is entirely appropriate for the Court to be permitted, with the parties' assent, to simply give the decision sans reasons. 4 The principled exercise of the relevant discretion presently is to dismiss the application for the separate question order. The principal reasons for that decision concern: Firstly, the high likelihood, as it seems to me from the materials which I have looked at, that there will be an overlap in evidence given by lay witnesses and evidence given by experts. Secondly, there are a number of respects in which, as I see it, the question of expertise will not be able to be quarantined from other areas of expertise. Thirdly, I very much doubt that the emphasis put by the plaintiffs in their submissions on the suggested significant economies of time and cost which are said to be achievable by separation of liability questions is well placed. The experience of the Court is that there is a huge expense in the run-up to a final hearing of litigation and the sometimes panacea, that a separate question order will lead to a significant saving in costs is simply often not realised when one looks at the real experience with these types of questions and their being severed. 5 Finally whilst the parties presently at the Bar table may not, for all I know, have come across this circumstance, it has been the Court's experience that on occasion even when a separate question order is ordered, there can be major disputation as to on which side of the separate question, particular evidence to be adduced falls, [in the fullness of time one may find that liability as it were, having been severed, there is a debate at the Bar table as to what is and is not permitted on the quantum side of the equation]. Sometimes lay evidence admitted during the liability segment can be sought to be relied upon or even tested again in the so-called quantum section of the hearing. 6 For those reasons I have absolutely no doubt but that in the present circumstances the principled exercise of the Court's discretion is to dismiss the application for the separate question order and that application stands dismissed.