Bevillesta Pty Limited v Perpetual Nominees Ltd

[2010] NSWSC 1306

CITATION:	Bevillesta Pty Limited v Perpetual Nominees Ltd & Ors [2010] NSWSC 1306
HEARING DATE(S):	1 October 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	1 October 2010
DECISION:	The issues raised by paragraph 8 of the points of defence be determined separately and before the other issues in the proceedings.
CATCHWORDS:	PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Setting down for hearing – whether issues should be heard separately
CATEGORY:	Procedural and other rulings
PARTIES:	Bevillesta Pty Limited ACN 008 428 162 (plaintiff) Perpetual Nominees Limited ACN 000 733 700 (first defendant) Perpetual Trustee Company Limited (second defendant) Challenger Managed Investments Limited (third defendant) AMAL Asset Management Limited (fourth defendant) Colonial First State Investments Limited (fifth defendant)
FILE NUMBER(S):	SC 10/243106
COUNSEL:	D Villa (plaintiff) M Cohen (defendants)
SOLICITORS:	Middletons (plaintiff) Norton Rose (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday, 1 October 2010

2010/243106 Bevillesta Pty Ltd v Perpetual Nominees Limited

JUDGMENT (ex tempore)

1 HIS HONOUR: The fundamental question is whether the circumstances that this case has been set down for a final hearing on an expedited basis, with an interlocutory injunction having been granted in the plaintiff's favour, and that injunction having been granted on the basis that the plaintiff would seek expedition and comply with all procedural requirements of the court, outweigh the desirability that contested issues of fact be resolved at the hearing by the best evidence available for that purpose.

2 It is clear, at least in my mind, that if what were involved were a deferral of the resolution of the whole proceedings until some time in the second quarter of 2011, that the need to have this case heard and resolved would outweigh the desirability of doing so on the best evidence possibly available. I also accept entirely Mr Coles QC’s submission, that courts have to do the best they can with such evidence as is reasonably available, and that resorting to chasing every rabbit down every warren is a luxury that can often not be afforded, even in litigation which involves the order of such sums of money as are in issue in this case.

3 That said, it seems to me that part of this case can in any event be resolved at the time already set down. It involves legal argument as to the effect of various clauses of the documentation, and whether a certificate issued by the defendant is binding and conclusive. I do not see that that is informed or assisted by the contested valuation evidence, which arises only if the defendant's case in the first respect fails.

4 So far as the valuation evidence is concerned, while again there is great force in Mr Coles' submission that there has been an opportunity for each party to put on such evidence as it wishes, there is also force in the submission that as a matter of practicality, each valuer in preparing his valuation did not address and did not have available the valuation prepared by the other. In some respects, that may be a thing highly to be desired; but it does mean that critical differences and assumptions between them have not been addressed up to this point, and the resolution of those differences and assumptions requires further evidence – in particular, the contracts, terms of sale, and price of various of the comparable properties.

5 As it seems to me now, whether by reference to an expert or by reference to a referee or by hearing before another judge, the valuation issues could be resolved in November of this year in any event. In those circumstances, I do not think that the prejudice occasioned by a delay of five weeks or so is such as to override the desirability of resolving the valuation issue on the best possible evidence.

6 Accordingly, I order that the issues raised by paragraph 8 of the points of defence be determined separately and before the other issues in the proceedings. Those issues will be determined on one of the dates presently fixed for hearing, which I will discuss with counsel in a moment.

7 I provisionally fix the hearing of the balance of the proceedings before Slattery J to commence on 22 November 2010 for three days.

8 I appoint Monday 11 October 2010 before the Registrar at 9 am for return of subpoena.

9 I order that the plaintiff pay the defendant’s costs of today's application. I reserve liberty to apply to set aside this order, and such application to be made not later than the commencement of the hearing.

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