Arida v Arida & Ors (No. 2) [2013] NSWSC 1137

Supreme Court New South Wales

Medium Neutral Citation: Arida v Arida & Ors (No. 2) [2013] NSWSC 1137 Hearing dates: 7 August 2013 Decision date: 07 August 2013 Jurisdiction: Equity Division Before: White J Decision: Refer to para [11] of judgment. Catchwords: PROCEDURE - application for leave to reopen - dispute as to appropriate orders giving effect to judgment - appointment of valuers - defendants argued that suggested valuers did not meet criteria in Heads of Agreement - issue not raised at hearing - adducing of further evidence may require adjournment for plaintiff to prepare evidence in reply - objectives of cheap and quick disposition of proceedings in ss 56, 57 and 58 of Civil Procedure Act 2005 Legislation Cited: Civil Procedure Act 2005 Category: Consequential orders Parties: Tony Arida (Plaintiff) Sid Arida (1st Defendant) Joseph Arida (2nd Defendant) George Arida (3rd Defendant) Wayne Wotton (4th Defendant) Representation: Counsel: M Jones SC with V McWilliam (Plaintiff) M J Stevens (1st to 3rd Defendants) Solicitors: Greenaway & Tohme Solicitors (Plaintiff) Somerset Ryckmans (Defendants) File Number(s): 2013/143977

Judgment 1HIS HONOUR: These proceedings were stood over to today for the purpose of making orders to give effect to my reasons for judgment of 30 July 2013. The principal point of difference between the parties as to the orders that should be made to give effect to those reasons concerns the appointment of the four valuers who had been nominated by the President of the Australian Property Institute to value the subject properties. As noted in my previous reasons, the first to third defendants had asked that the nominated valuers agree that their valuation could be relied on by an incoming lender, but they did not agree. There was no requirement in the Heads of Agreement that the valuers should agree that their valuation could be relied on by an incoming lender. 2The plaintiff had sought in his statement of claim an order: "... in the nature of specific performance of the Heads of Agreement that the Plaintiff and the First, Second and Third defendants, within 7 days of this order, jointly retain the valuer(s) nominated by the President of the Australian Property Institute on or about 12 October 2012, to perform the valuations of property required by the Heads of Agreement". 3No point was raised during the course of submissions as to either the suitability of the four valuers who had been nominated by the President of the Australian Property Institute, nor as to whether they were persons qualified to be retained pursuant to clause 1(b) of the Heads of Agreement. This was so notwithstanding that part of the evidence that was adduced at the hearing included correspondence from some of the valuers in which they advised that they took a business decision not to do any further valuations for mortgage security purposes from the end of June 2012, or to the same effect they had decided not to undertake any further mortgage work in order to reduce their business risk profile. 4In my reasons I said (at [63]) that unless the parties agreed on another valuer or valuers, the person nominated by the President of the Australian Property Institute should be instructed to carry out the valuations provided for in the Heads of Agreement. The plaintiff seeks an order accordingly because there has been no agreement between the parties for the appointment of substitute valuers. 5My statement at paragraph [63] of my reasons was in accordance with the way the matter had been litigated at the hearing on 26 July. The first to third defendants seek leave to reopen to adduce further evidence and to maintain a submission either on the basis of the further evidence to be adduced, or, I infer, if that evidence were rejected, on the basis of the evidence that was before the Court on 26 July, that three of the valuers in question are not qualified within clause 1(b)(iv) as it should be inferred they are not regularly retained to prepare valuations relied on by first tier lending institutions. The further evidence sought to be adduced consists of correspondence from the first to third defendants' solicitors, Somerset Ryckmans, to the valuers in question asking for their confirmation that they are persons who regularly are retained to prepare valuations relied on by first tier lending institutions. Such confirmations have not been received. 6The statements in the letters from the valuers that are already in evidence certainly give rise to a question whether those persons since July 2012 are persons who are regularly so retained. Clause 1(b)(iv) speaks in the present tense. On the other hand, the correspondence is not necessarily inconsistent with the valuers in question regularly being so retained to prepare valuations that are relied on by first tier lending institutions, at least for purposes other than mortgage purposes. 7That was not an issue that was explored at the hearing because no point had been raised about it by the first to third defendants. It does not appear that the first to third defendants had any doubts as to the qualifications or experience of the valuers in question. The point that they raised in 2012 was not whether the valuers were qualified to be appointed in accordance with clause 1(b), but whether or not they were prepared to state that their valuations could be relied upon by an incoming lender: in other words, whether they were prepared to expose themselves to risk of suit by an incoming lender if the valuations were prepared negligently. The fact that the valuers so approached were not prepared so to expose themselves says nothing about their qualifications or experience or suitability for the task. 8So the real question now is whether, at this late stage, the first to third defendants should be entitled to raise the issue whether the valuers are qualified in terms of clause 1(b)(iv). If they are to be allowed to raise that issue, the plaintiff would be entitled to an adjournment, if sought, to obtain evidence as to the extent to which the individuals in question are retained to prepare valuations relied on by first tier lending institutions. 9The proceedings were expedited and I was told by both parties that the matter is urgent. Whilst the first to third defendants are entitled to compliance with the terms of the Heads of Agreement, they are also obliged to raise any issues about such compliance with the Heads of Agreement within the framework of these proceedings, which requires relevant issues to be identified and the evidence to be relied on to be adduced at the hearing. 10The application to adduce further evidence and to be allowed to raise this issue is to be approached having regard to the requirements of ss 56, 57 and 58 of the Civil Procedure Act 2005. The issue, if raised, would not further the objectives of the cheap and quick disposition of the proceedings. Nor, do I think, would it be in accordance with the just disposition of the proceedings. The parties chose the issues on which they were prepared to fight. This issue was not one of those chosen. I do not think that there is any underlying obvious merit to the point now being sought to be raised in terms of the purpose and objectives of the Heads of Agreement. I refuse the application to reopen. I reject the affidavit of Mr Fasullo sworn 6 August 2013. The orders therefore will be as follows. [His Honour noted variations to be made to short minutes of order proposed by the plaintiff.] 11With those variations I make orders 1, 2, 3, 3A, 4, 5, 6 and 8 and I note the matter in paragraph 7 of the short minutes. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2013