Supreme Court New South Wales Medium Neutral Citation: Tom Folino-Gallo & Sons Investments Pty Limited v Zulian [2019] NSWSC 596 Hearing dates: 17 May 2019 Date of orders: 21 May 2019 Decision date: 21 May 2019 Jurisdiction: Equity Before: Henry J Decision: (1) Dismiss the defendant's notice of motion. (2) The defendant to pay the plaintiff's costs of the notice of motion filed 5 November 2018. Catchwords: CIVIL PROCEDURE – separate determination of questions – application based on alleged res judicata, issue estoppel and Anshun estoppel – where evidence nearly complete – where separate questions will raise questions of fact – risk of fragmentation of proceedings – application for separate questions refused Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 61 Corporations Act 2001 (Cth) s 247A Uniform Civil Procedure Rules 2005 (NSW) rr 28.2, 42.1 Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 Beck v Weinstock; Beck v L W Furniture (Consolidated) Pty Ltd [2012] NSWCA 289 Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 In the Matter of Tolco Pty Ltd [2016] NSWSC 1069 J Annan v FSS Trustee Corporation [2017] NSWSC 1453 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Robinson & Ors v Deep Investments Pty Ltd (2018) 364 ALR 305 Southwell v Bennett [2010] NSWSC 1372 Texts Cited: George Spencer Bower, The Doctrine of Res Judicata (1st ed, 1924, Butterworth & Co, London) Category: Procedural and other rulings Parties: Tom Folino-Gallo & Sons Investments Pty Limited (Plaintiff) Gabriel Zulian (Defendant) Representation: Counsel: G McGrath (Plaintiff) A Di Francisco (Defendant) Solicitors: Hansons Lawyers (Plaintiff) M&A Lawyers (Defendant) File Number(s): 2017/263952 Judgment Introduction 1. By notice of motion filed on 5 November 2018, the defendant, Gabriel Zulian, seeks orders under s 61 of the Civil Procedure Act 2005 (NSW) (CPA) or, alternatively, under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that four questions be determined separately from, and before, any further trial of these proceedings. 2. The four questions arise from matters pleaded in the amended defence filed on 18 October 2018. They can be summarised as follows: 1. whether consent orders made by this Court in proceedings 2012/149059 between the plaintiff and the defendant (the 2012 proceedings) give rise to a res judicata or an issue estoppel in respect of the allegations made in these proceedings regarding a relationship of trust and the terms of an oral agreement between the plaintiff and defendant (the res judicata and issue estoppel question); 2. whether the statement of claim in these proceedings should be dismissed as an abuse of process by seeking to traverse the consent orders made in the 2012 proceedings (the abuse of process question); 3. whether the statement of claim in these proceedings should be dismissed due to Anshun estoppel principles (the Anshun estoppel question); and 4. whether the settlement of the 2012 proceedings as evidenced by certain letters and a deed of settlement between the plaintiff and the defendant dated 11 July 2014 (Deed) means that the plaintiff is barred in these proceedings from claiming payment of a sum relating to a dividend declared in favour of the defendant, that the plaintiff and defendant entered into an agreement on the terms pleaded and there was a relationship of trust (the contractual bar question). 1. The plaintiff, Tom Folino-Gallo & Sons Investments Pty Limited, opposes the notice of motion. Both parties filed evidence and provided written submissions which were supplemented by oral submissions at the hearing. 2. While some of the submissions and authorities provided to the Court at the hearing of the notice of motion were directed towards the substantive issues raised by the separate questions, the only issue for the Court to determine is whether the questions referred to in the notice of motion should be determined separately. Background and current proceedings 1. As is evident from the terms of the separate questions, there is a history of litigation between the plaintiff and the defendant. The nature of the claims made in the earlier litigation and other events (which are not in dispute) are relevant to an assessment of whether the separate questions should be ordered and so it is necessary to set out some details of those matters by way of background. 2. These proceedings, as well as the previous litigation between the plaintiff and the defendant, relate to a company called Tolco Pty Ltd (Tolco). Tolco was incorporated on 28 February 2000 and conducted an engineering and construction business in Port Kembla. At the time of its incorporation, the defendant was Tolco's sole shareholder (holding one share) and sole director. The plaintiff claimed to have an interest in Tolco since its incorporation, initially as a silent partner. 3. In the 2012 proceedings, the plaintiff claimed an 87.5% interest in the share capital of Tolco, which was alleged to have arisen from an oral agreement between the defendant and Mr Tom Folino-Gallo (the director of the plaintiff) or a relationship of trust. The defendant denied the terms of the oral agreement as pleaded, any relationship of trust between the parties and that the plaintiff had any interest in Tolco as alleged by the plaintiff. 4. The 2012 proceedings settled following an exchange of letters between the solicitors for the plaintiff and the defendant on 26 September and 4 October 2013 (2013 letters). On 9 October 2013, the Court entered consent judgment on terms that provided for one ordinary share in Tolco (representing 50% of the shareholding) to be issued to the plaintiff, the defendant to pay the plaintiff's costs and the proceedings to be otherwise dismissed (2013 Consent Orders). 5. On 11 October 2013, the plaintiff was issued its one share in Tolco. 6. On 11 July 2014, the plaintiff and the defendant executed the Deed which allowed the defendant time to pay the plaintiff's legal costs in the 2012 proceedings and contained clauses providing for a release and an entitlement to rely on the Deed as a bar in other proceedings in respect of those costs. 7. Prior to the 2012 proceedings settling, Tolco declared a dividend in favour of the defendant in the sum of $326,005.00 (the Dividend). The Anshun estoppel and abuse of process questions in these proceedings raise the issue of when the plaintiff became aware or ought to have been aware of the existence of the Dividend. 8. On 28 August 2014, the plaintiff commenced proceedings against Tolco pursuant to s 247A of the Corporations Act 2001 (Cth) seeking access to Tolco's books and records (2014 proceedings). The defendant was not a party to the 2014 proceedings. On 3 August 2016, Brereton J gave judgment: In the Matter of Tolco Pty Ltd [2016] NSWSC 1069. On 22 August 2016, Brereton J made orders allowing the plaintiff to inspect Tolco's books and records. 9. In the financial year ending 30 June 2015, Tolco paid the defendant a salary of $357,639.16 (2015 salary). It appears from the evidence before the Court on the notice of motion that, prior to that year, the defendant may have been paid a salary of (on average) around $85,000.00 per year. 10. On 31 July 2015, administrators were appointed to Tolco. Since 4 September 2015, Tolco has been in liquidation. 11. On 9 March 2016, the plaintiff commenced proceedings (2016/74736) against the defendant in this Court (2016 proceedings) in which the plaintiff claimed, amongst other matters, an interest in a company named Tolco Port Kembla Pty Ltd, an alleged fiduciary duty owed to the plaintiff and an account of money and benefits paid by Tolco to the defendant, including the Dividend, in breach of the fiduciary duty. The statement of claim in the 2016 proceedings also pleaded an oral agreement between the plaintiff and defendant, a term of which was that the defendant would hold the shares in Tolco for the plaintiff as to 87.5%, consistent with the terms of the oral agreement pleaded in the 2012 proceedings. 12. On 10 June 2016 the plaintiff discontinued the 2016 proceedings on terms which required the plaintiff to pay the defendant's costs. 13. The plaintiff commenced these proceedings against the defendant by statement of claim filed on 30 August 2017. In these proceedings, the plaintiff also pleads an oral agreement between the plaintiff and the defendant. Some of the terms of that oral agreement are the same or similar to the terms of the oral agreement pleaded in the 2012 and 2016 proceedings, whereas some terms were not pleaded at all (such as in respect of salary and benefits to be paid to the defendant) or are inconsistent with the pleaded terms in the 2012 and 2016 proceedings but consistent with the terms of the 2013 Consent Order (for example, the defendant holding the shares in Tolco for the plaintiff as to 50%, rather than 87.5%). 14. The statement of claim in these proceedings also pleads that the defendant held one half of the single issued share in Tolco on trust for the plaintiff and that the defendant caused Tolco to credit the Dividend to his own account and pay him the 2015 salary in breach of the oral agreement and in breach of trust. The plaintiff seeks declaratory relief in relation to one half of the Dividend, one half of the excess 2015 salary paid to the defendant and an order for payment of those amounts or, alternatively, equitable compensation or damages. 15. On 22 November 2017, the defendant filed a defence in these proceedings in which he denied the terms of the oral agreement, denied that he held one half of the share on trust for the plaintiff, pleaded the issue of the one share in Tolco in pursuance of the 2013 Consent Orders and denied that the plaintiff was entitled to any relief. 16. By 5 July 2018, the plaintiff had filed its evidence in chief in these proceedings. 17. On 22 October 2018, the defendant filed an amended defence in these proceedings. Relying on the terms of the pleaded case in the 2012 proceedings, the 2013 Consent Orders, the Deed and 2013 letters, and an assertion that the plaintiff ought to have known and ought to have pleaded the Dividend and salary term in the 2012 proceedings, the amended defence raises new defences of res judicata, issue estoppel, Anshun estoppel, abuse of process and the plaintiff being barred from bringing the claims. Those new defences are the questions which the defendant seeks to have determined separately. Legal principles 1. Although the notice of motion sought the orders under s 61 of the CPA, the hearing proceeded on the basis that r 28.2 of the UCPR was more relevant and the principles referable to that rule should be applied. 2. The legal principles that apply in determining whether to make an order under r 28.2 UCPR for the separate determination of questions were not in dispute at the hearing. 3. Counsel for both parties accepted that the Court should apply the principles as summarised and set out by Hallen AsJ (as his Honour then was) in Southwell v Bennett [2010] NSWSC 1372 at [15], which I respectfully adopt as follows: "(a) The rule [r 28.2] speaks of "questions" and not "issues" and does not differentiate between questions of fact, or law, or partly of fact and partly of law. (b) The judicial determination of a "question" must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, at [45] and [51]. (c) The rule permits the Court to hear and determine the separate question at any point before, at, or after, any trial or further trial in the proceedings, rather than only as a preliminary question. (d) Whether such an order should be made is a matter for the court's discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7]. (e) As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1, at [168]–[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water and Ors [2010] NSWSC 979 at [4] per Studdert AJ. (f) In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect. (g) Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be 'just and convenient' for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]-[9], see also Energy Australia v Australian Energy Limited [2001] FCA 1049. (h) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J. (i) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Limited v The Water Board at [168]. (j) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported). (k) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037. (l) Often, a separate question is heard on the basis of: (i) agreed statements of fact; (ii) a narrow point to be determined; and (iii) a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with). (m) Factors that tend to support the making of an order, include that the separate determination of the question may: (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings; (ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 602 per Kirby P at 607). (n) It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86 at [27] per Rares J. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions. (o) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions. (p) Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Limited v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J. (q) It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Limited v Duffy at pp 4-5. (r) Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred. (s) It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided: Jacobson v Ross [1995] 1 VR 337 at 341". Determination 1. The application of the above principles is a balancing act that requires the Court to weigh up the prospect of the separate questions disposing of all or part of these proceedings in an expeditious and cost-effective manner against the risk of the hearing of the separate questions leading to overlapping factual issues or credit issues regarding witnesses and delays the timely and efficient hearing of all issues in dispute. That balancing act must also take into account the interests of justice as between the parties: J Annan v FSS Trustee Corporation [2017] NSWSC 1453 at [5] and Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [87] – [92]. 2. The starting position is that all questions of fact and law raised in these proceedings should be heard and finally determined together unless the defendant can show that there are good reasons for making an order for the determination of the separate questions and that doing so would give effect to the overriding purpose of the CPA, being the just, quick and cheap resolution of the real issues in these proceedings. 3. The key proposition advanced by the defendant is that separately determining the questions may dispose of the proceedings entirely, or alternatively, limit the issues, as it could dispose of one or more of the plaintiff's claims relating to the Dividend or the 2015 salary, or clarify the terms of the oral agreement made by the parties and any relationship of trust which are pleaded in these proceedings. 4. It is not appropriate for me to express any concluded views on the substantive matters raised by the separate questions, although the parties accepted that the strength of the defendant's arguments may be a relevant factor for the Court to take into account in exercising its discretion and I was taken to some of the authorities on the substantive issues. In that context, I make the following high level observations. 5. Consent orders, including an order that proceedings are otherwise dismissed, can give rise to a res judicata in respect of any cause of action asserted in prior proceedings: Beck v Weinstock; Beck v L W Furniture (Consolidated) Pty Ltd [2012] NSWCA 289 at [67]. It was put by the plaintiff and appeared to be accepted by defendant's counsel that the cause of action in the 2012 proceedings, which was settled by the 2013 Consent Orders, was a claim by the plaintiff for a shareholding interest in Tolco (which was said to arise from the terms of the oral agreement and trust relationship pleaded) and not for any declaratory relief or orders for payment relating to the Dividend or the 2015 salary of the type now pursued. 6. The defendant's res judicata and issue estoppel question also relies on an argument that, having pleaded an oral agreement and a relationship of trust in the 2012 proceedings and settled the matter on the terms of the 2013 Consent Order, the plaintiff is bound by those pleaded terms and cannot now plead additional or new terms of that oral agreement or relationship of trust. As the defendant put it, there is an issue estoppel on the "entirety" of the oral agreement and there are no other terms. 7. It can be very difficult to identify (and may be open to debate) whether any particular matters of fact and law give rise to an issue estoppel in circumstances where a consent judgment and orders have been made: Beck v Weinstock; Beck v L W Furniture (Consolidated) Pty Ltd [2012] NSWCA 289 at [63], citing George Spencer Bower, The Doctrine of Res Judicata (1st ed, 1924, Butterworth & Co, London). This difficultly seems to be heightened in the present case where the terms relating to the Dividend and to the salary and benefits to be paid to the defendant were not pleaded in the 2012 proceedings and are not, on their face, terms that are inconsistent with the oral agreement pleaded in 2012 or the 2013 Consent Orders. 8. The 2015 salary claim also relates to a cause of action which appears to have accrued some years after the 2013 Consent Orders. This is also relevant to the defendant's arguments in respect of the Anshun estoppel question, which to succeed, will require the defendant to show that it was unreasonable for the plaintiff to fail to raise the Dividend and 2015 salary terms and claims in the 2012 proceedings since they were so connected to the subject matter of those proceedings, in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 9. The defendant's arguments on the abuse of process question raise similar considerations to the res judicata and issue estoppel question. This is because the defendant asserts that the plaintiff's claims in these proceedings are an abuse of process as they seek to traverse the 2013 Consent Orders (see paragraph 34 of the Amended Defence and paragraph 3 of the motion). 10. In submissions, defendant's counsel also relied on the discontinuance of the 2016 proceedings and the multiplicity of proceedings as matters which go to the abuse of process question. He also referred to the reasoning in Robinson & Ors v Deep Investments Pty Ltd (2018) 364 ALR 305, which confirms that the doctrine of abuse of process is informed by considerations of finality and fairness and is not limited to claims which give rise to an estoppel but can extend to serial proceedings being discontinued, tactical manoeuvring regarding the holding back of claims, and the prosecution of claims which may lead to inconsistency with the conduct and outcome of prior proceedings. Applying those considerations means that the abuse of process question will require the Court to consider the documentary record and witnesses of fact and make findings about evidence relating to the circumstances and reasons for the discontinuance of the 2016 proceedings. 11. The defendant also accepted that his arguments in relation to the contractual bar question are not strong (T6:46, T7:4) having regard to the terms of the Deed, which appears on its face to relate only to the legal costs payable by the defendant in respect of the 2012 proceedings. 12. In view of the above, it is apparent that the issues raised by the separate questions include some complex legal and factual matters. They relate to defences which the plaintiff contests and which defendant's counsel described at the hearing as "arguable" points (T12:14). 13. The defendant submits that the evidence on the hearing of the separate questions would be mainly documentary, including the documentary record relating to the 2012 proceedings and its settlement, and would not traverse all of the factual and legal issues raised by the remaining issues in the proceedings or require evidence to be given by all the same witnesses. There is some force to that submission - for example, the separate questions would not require evidence to be led on the reasonableness of the 2015 salary and whether any amounts should be paid to the plaintiff, nor would the separate questions require expert evidence regarding the Dividend. 14. However, the separate questions are not discrete or narrow issues of law or fact and will, in my view, be likely to traverse some of the issues raised by the remaining claims in these proceedings and require evidence to be given by at least one common witness. 15. The determination of the separate questions will require the Court not only to consider the terms of the pleadings in the 2012 proceedings, the Consent Orders, the Deed and the 2013 letters, but also to consider extensive lay affidavit evidence filed by witnesses in the 2012 proceedings (two of whom are the same and key witnesses in these proceedings) on the scope of the terms of the oral agreement and relationship of trust, which are also issues in these proceedings. I do not agree that there is a bright line differentiating the factual issues to be determined at the separate questions from those to be determined at the proposed later trial (assuming one proceeds), as the defendant's counsel suggests. 16. If the outcome of the separate questions is that the plaintiff is estopped from pursuing the Dividend claim but not the 2015 salary claim, it seems likely that the Court at the separate question hearing and the Court at the final hearing will need to consider the terms of the alleged 1999/2000 oral agreement. This raises the potential for inconsistent factual findings and also the risk raised by plaintiff's counsel that part of the second hearing would be spent arguing about what the decision from the separate questions hearing means, and how far it extends. It also runs counter to the submission put by the defendant that the separate questions may limit the issues in dispute which could assist in facilitating settlement. 17. The separate questions will also require the Court to make findings on other factual matters, such as when Mr Folino-Gallo was aware of the Dividend, when the plaintiff was or ought to have been aware of the Dividend, and the reasonableness of the plaintiff's conduct in not raising the Dividend claim and the term relating to the payment of salary and other benefits in the 2012 proceedings and commencing and then discontinuing the 2016 proceedings. I accept the plaintiff's submission that the determination of those matters and the separate questions could not be made on established or agreed facts in accordance with the accepted principles. 18. There is also the risk that ordering the separate questions may lead to Mr Folino-Gallo giving evidence and being cross-examined twice. Defendant's counsel submitted that the evidence from Mr Folino-Gallo on the separate questions would be unlikely to raise issues of credit as, on the Anshun estoppel question, the defendant only needs to show what Mr Folino-Gallo ought to have known about the Dividend, not what he did or didn't know at a particular time, and a partially successful outcome would narrow the issues so cross-examination would largely not be needed. Even if the submission regarding credit issues on the Anshun estoppel question is correct, it does not deal with the events surrounding the 2016 proceedings, which the defendant relies on for the abuse of process question and which plaintiff's counsel identified as an area for Mr Folino-Gallo's evidence. The submission also acknowledges some prospect of multiple instances of cross-examination. 19. No offer was made to limit the scope of Mr Folino-Gallo's cross-examination at the hearing of the separate questions, which is not unexpected in circumstances where his evidence in reply on the factual matters relating to the issues raised by the separate questions is yet to be served. 20. Having a key witness cross-examined twice at different hearings in the same proceedings should be avoided if possible (see for example, Idoport Pty Ltd v National Australia Bank Ltd & Ors [2000] NSWSC 1215 at [18]). It also raises the potential for complications on issues of credit relating to Mr Folino-Gallo which, even if a low risk, should be resisted. 21. The defendant submits that a benefit to be gained from hearing the separate questions is the potential for considerable savings for the Court and the parties. This is from the possible reduction in total hearing time which would eliminate delay in a hearing date being allocated and the duration of the trial (assuming any further trial is needed), and avoiding the need for the parties to prepare further evidence or the Court to hear cross-examination of witnesses. 22. The uncontested evidence from the defendant is that a determination of the separate questions that disposed of the entirety of the proceedings would reduce a 5+ day final hearing on all issues to a 2 day hearing. There was no evidence of the amount of costs savings to the parties, although it can be inferred that it would be likely to lead to some. 23. If the separate questions do not resolve the proceedings entirely and result in all or some of the plaintiff's claims continuing to be prosecuted at a final hearing, the net effect would, in my opinion, be likely to delay the final outcome of the proceedings and result in increased costs and possibly increased court time from the split hearings. Given the scope of the factual matters raised by a determination of either of the Dividend or 2015 salary claims (which may include evidence of the terms of the alleged oral agreement) and the remaining defences, it is to be expected that the parties would need to attend two hearings of at least the same combined length as currently estimated for a final hearing and forgo the potential savings from running a hearing on all issues together. 24. The plaintiff raised the issue of the defendant's delay in bringing the motion. I do not consider that to be a significant factor. Both parties have delayed in complying with Court directions during these proceedings. The relevance of the delay is rather that most of the evidence in these proceedings is now complete and so there is questionable utility in ordering a hearing of the separate questions at this late stage of the proceedings. 25. A hearing of the separate questions will not obviate the need for, nor save on, the cost of the collation and preparation of much additional evidence. The only outstanding lay evidence is reply evidence from Mr Folino-Gallo, which is required for a hearing of the separate questions in any event. The application to treat the plaintiff's evidence from an accountant as expert evidence and any expert evidence in reply from the defendant may be avoided, but only if the separate questions result in the Dividend claim not being able to be pursued. 26. An additional practical factor is the actual availability of Court time and the delay that might be caused by the questions being decided separately. This case does not appear to be a situation in which the hearing of the separate questions would be able to be heard in a considerably quicker time relative to the hearing if the separate questions were not dealt with. 27. Further, whatever the outcome of the separate questions, there is a risk of appeals, which could lead to interlocutory appeals being pursued while other parts of the claim and defences are being run, leading to further fragmentation of the issues and delays in these proceedings. 28. These proceedings raise events going back to 1999 and 2000, a claim that may have arisen as early as August 2013, a consideration of a multiplicity of proceedings and various defences, including those raised by the separate questions. The defendant has also very recently brought proceedings against his former lawyers regarding advice he received on the settlement of the 2012 proceedings and the 2013 Consent Orders. There is a prospect that the new proceedings may be joined to these current proceedings. 29. Any of the outcomes on the separate questions posited by the defendant other than complete disposal of these proceedings gives rise to the potential for prejudice, by way of inconsistent views on credit or other findings, and the likelihood that these proceedings will be delayed and that the parties will incur increased legal costs. 30. In those circumstances, I am not satisfied that it would be consistent with the requirement for the just, cheap and quick determination of the issues in these proceedings to exercise my discretion and make the orders sought in the defendant's notice of motion. I consider the interests of justice and the parties would be better served by having all issues in dispute in these proceedings being heard and finally determined as soon as possible. 31. The defendant seeks that costs of the notice of motion be each party's costs in the cause of the proceedings. The general rule is that costs follow the event unless it appears to the Court that some other order should be made: r 42.1 UCPR. There is no apparent reason why the usual rule should not be applied in this case. 32. For the reasons given, the Court makes the following orders: 1. Dismiss the defendant's notice of motion. 2. The defendant to pay the plaintiff's costs of the notice of motion filed 5 November 2018. 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: 21 May 2019