163 Clarence Street Pty Ltd v New World Oil & Developments Pty Ltd

[1995] FCA 1112

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 249 of 1993
GENERAL DIVISION                 )

Between:163 CLARENCE STREET PTY LIMITED ACN 001 042 262

Applicant

And:NEW WORLD OIL & DEVELOPMENTS PTY LIMITED ACN 008 979 422

First Respondent/ First and Third Cross Claimant

JAMINO PTY LIMITED

ACN 002 704 047

Second Respondent/ First and Third Cross Claimant

And:OPTIMUS PTY LIMITED

ACN 0001 847 785

First Cross Respondent/Second Cross Claimant

CARRIER AIRCONDITIONING PTY LIMITED ACN 000 024 742

Second Cross Respondent

INTERIOR DIRECTIONS PTY LIMITED ACN 003 715 697

Third Cross Respondent

REASONS FOR JUDGMENT

EINFELD J                  SYDNEY            22 DECEMBER 1995

This was a most complex action the details of which are set out in my interlocutory judgments given on 31 May and 25 November 1994 and 24 February 1995.  The matter was settled on 17 March
1995 on the fifth day of a hearing expected to take several weeks.  The only matter not compromised was an application by the second cross claimant Optimus for leave, pursuant to Order 22 rule 2(1)(d) of the Federal Court Rules, to discontinue its cross claim against Carrier.  Carrier originally asked that the cross claim be dismissed.  However, in written submissions in the matter, it did not actually oppose the discontinuance, instead asking that leave be granted on terms that would prevent the claim ever being litigated again.

The Court has a full discretion to grant leave, that is, it may or may not do so or may do so on terms.  Carrier said that it would suffer an injustice if Optimus was ever permitted to litigate the same claim in the future because

(1)Optimus has never filed any evidence in support of its claim

(2)the events canvassed in the cross claim go back to 1986

(3)it is most unlikely that the present claim could or would ever be resurrected

(4)Optimus has suffered no loss from any culpability of Carrier

(5)the proceedings should be finalised

Optimus argued that no party should be compelled to litigate against its will unless some injustice can be shown to follow, and none has been shown or argued here.  Optimus said that there is no available inference that the second cross claim was meritless or vexatious.  Moreover, if there is litigation against Optimus concerning the air conditioning of other floors in the same building, and this claim is dismissed, there is some risk of Carrier pleading an estoppel against any cross claim by Optimus against it in any such action.  Optimus put no argument against discontinuance on the terms proposed by Carrier.

In my view, Carrier has made out a case of hardship or injustice if the claim can be resurrected.  However, Optimus should be permitted to make the allegations in the cross claim if there is any litigation commenced against Optimus by or as a result of action taken by any other tenants of the building.  In the circumstance, therefore, that the parties are more or less agreed on the result of this application, I grant leave to Optimus to discontinue its cross claim on condition that no attempt be made by Optimus to renew or resurrect the same claim against Carrier as is contained in its second cross claim in these proceedings.