Blashki v Utara

[2003] NSWSC 210

CITATION:	Blashki v Utara [2003] NSWSC 210
HEARING DATE(S):	25 March 2003
JUDGMENT DATE:	25 March 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	On making of orders proceedings adjourned for further consideration but questions of quantification and payment also specifically reserved.
CATCHWORDS:	PROCEDURE [110] - Supreme Court Procedure - Practice under Supreme Court Rules - Trial - Further consideration - Ambit.
CASES CITED:	Blashki v Utara [2002] NSWSC 1201 Kara Kar Holdings Pty Ltd v Brookton Holdings NSWCA 27 March 1997 unreported Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22 Daniell's Chancery Practice (5th ed, 1871), (7th ed, 1901)
PARTIES :	Phillip Sydney Blashki (P) Ida Bagus Utara (D)
FILE NUMBER(S):	SC 4686/99
COUNSEL:	S J Burchett (P) G A Sirtes (D)
SOLICITORS:	Andrews (P) Burn & Company (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 25 MARCH 2003

4686/99 PHILLIP SYDNEY BLASHKI v IDA BAGUS UTARA

JUDGMENT

1 HIS HONOUR: There has been further debate before me this morning as to the form of the orders which should be made in these proceedings consequent upon my substantive judgment: Blashki v Utara [2002] NSWSC 1201 (“my judgment”). I had circulated to counsel a minute of the orders I was prepared to make. Orders 1, 2 and 3 in that minute corresponded with the orders which I shall now proceed to make. No objection was taken to the making of those orders. Order 4 in the minute was in the form, “Otherwise judgment for the defendant on the plaintiff's claims.” The defendant agreed to the making of the orders in the form I proposed, but a number of objections to them were advanced by Mr Burchett, of counsel for the plaintiff.

2 The first was that order 4 as proposed is dangerously wide and may subsequently be argued to preclude further orders in favour of the plaintiff consequential on order 3. I had proposed to protect the plaintiff by adjourning the proceedings for further consideration. But Mr Burchett argued by reference to what appears at the foot of 1230 in Daniell's Chancery Practice (5th ed, 1871) (repeated in 7th ed, 1901 at 949) that the scope of further consideration is very narrow and that that increases the danger he perceives. The passage in Daniell is as follows:

"The Court will not take any matters into consideration at the further hearing, which were in issue at the first hearing, but were not then decided, put into a train of investigation, or reserved, such matters being considered as abandoned, or in such a state as not to entitle the plaintiff to any order on them.”

There appears to me to be some substance in Mr Burchett's criticism. To put the matter beyond doubt, I have replaced the original order 4 with orders 4, 5 and 6 which I shall now make. These specifically reserve the further questions which may arise from order 3, reservation being a possible course adverted to in the passage from Daniell. Orders 5 and 6 I have framed to ensure that the orders are limited to the termination of claims which in my judgment I resolved in the defendant's favour. In addition, I shall continue to adjourn the proceedings for further consideration and to reserve liberty to apply.

3 Mr Burchett continued to urge upon me, as he has previously done, that I should make an order providing a mechanism for the determination of the further matters arising from the terms of order 3. He has drawn my attention to the decision of the Court of Appeal in Kara Kar Holdings Pty Ltd v Brookton Holdings NSWCA 27 March 1997 unreported. In that decision Powell JA was critical of the form of orders made by Young J below as not sufficiently finalising or defining matters which ought have been finalised or defined at the time of his Honour's orders. He suggested that that decision compelled or conduced to my making immediately an order for an inquiry before the Master or otherwise providing for the determination of the quantum of the amount to be paid by the defendant to the plaintiff under order 3. However, in that case, the trial Judge had ordered an inquiry before the Master and the criticism was that the order was in such a form “that both the Master and the parties were left to speculate upon and disagree about the nature and purpose of the inquiry.” That situation is quite different from the present. The reason that I do not at the present time propose to make an order for the determination of the quantum as asked is that I regard the order sought as being hypothetical in nature and premature, as events have not yet determined upon what basis the quantum is to be determined. The defendant may at any time sell the property at auction. Such sale would determine the amount to be paid by the defendant to the plaintiff leaving the only further order necessary an order for payment. On the other hand, if the defendant does not sell but retains the property, it will then become appropriate to order the mode of quantification of the difference in value of the property. I am not convinced at this stage that an inquiry before the Master or even a reference under Part 72 of the Supreme Court Rules 1970 (as suggested by the plaintiff) is appropriate. Either a voluntary reference by the parties to an expert valuer for a determination binding on them or the procuring in the first instance of a report from a Court appointed valuer which may be accepted by the parties may be a possibility. The defendant has already indicated at least a prospect of an appeal against my judgment so that the time that may pass before implementation of order 3 may be extended. The decision of the Court of Appeal in Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22 emphasises the dangers of making final orders on a basis which is premature or speculative.

4 For all these reasons, earnestly as Mr Burchett has pressed for it, I do not propose to make any further order consequent upon order 3 at this stage. But the terms of orders 4, 7 and 8 amply protect the plaintiff’s position in this regard. The orders of the Court (other than as to costs) will therefore be:

1 Judgment for the plaintiff in the sum of $9,927.65 on the balance of his claim for moneys lent to the defendant.
2 Order that if the property known as 19 Courland Street, Five Dock (“the property”) be sold by the defendant it be sold by public auction.
3 Declare that upon the satisfaction of the judgment in order 1 the plaintiff will be entitled to be paid by the defendant one half of the difference between on the one hand the fair market value of the property or if it has prior to that time been sold by public auction the net proceeds of that sale and on the other hand the purchase price of the property together with the conveyancing costs on its purchase (inclusive of stamp duty).
4 Reserve all questions as to quantification and payment by the defendant of the difference referred to in order 3.
5 Dismiss the plaintiff’s claims for a declaration of trust in respect of the property.
6 Judgment for the defendant on the plaintiff’s claim on a guarantee.
7 Adjourn these proceedings for further consideration.
8 Liberty to either party to apply or restore on three days’ notice.
9 Direct that these orders be entered forthwith.

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Last Modified: 04/24/2003