Clambake Pty Ltd v Tipperary Projects Pty Ltd
[2004] WASC 104
CLAMBAKE PTY LTD -v- TIPPERARY PROJECTS PTY LTD & ANOR [2004] WASC 104
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 104 | |
| Case No: | CIV:1707/2003 | 11 MAY 2004 | |
| Coram: | EM HEENAN J | 11/05/04 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Order for consolidation | ||
| B | |||
| PDF Version |
| Parties: | CLAMBAKE PTY LTD (ACN 009 242 371) TIPPERARY PROJECTS PTY LTD (ACN 054 744 713) WARREN PERRY ANDERSON OWSTON NOMINEES NO 2 PTY LTD (ACN 001 769 099) LAND CAPITAL PTY LTD (ACN 058 548 806) IVOR FREDERICK COHEN |
Catchwords: | Practice and procedure Consolidation of action Differences in parties Directions |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TIPPERARY PROJECTS PTY LTD (ACN 054 744 713)
First Defendant
WARREN PERRY ANDERSON
Second Defendant
- First Plaintiff
TIPPERARY PROJECTS PTY LTD (ACN 054 744 713)
Second Plaintiff
AND
CLAMBAKE PTY LTD (ACN 009 242 371)
First Defendant
(Page 2)
- LAND CAPITAL PTY LTD (ACN 058 548 806)
Second Defendant
IVOR FREDERICK COHEN
Third Defendant
Catchwords:
Practice and procedure - Consolidation of action - Differences in parties - Directions
Legislation:
Nil
Result:
Order for consolidation
Category: B
Representation:
CIV 1707 of 2003
Counsel:
Plaintiff : Mr A P Hershowitz
First Defendant : Mr D H Solomon
Second Defendant : Mr D H Solomon
Solicitors:
Plaintiff : Paiker & Overmeire
First Defendant : Solomon Brothers
Second Defendant : Solomon Brothers
(Page 3)
CIV 2093 of 2003
Counsel:
First Plaintiff : Mr D H Solomon
Second Plaintiff : Mr D H Solomon
First Defendant : Mr M P Cornes
Second Defendant : Mr J E Wyatt
Third Defendant : Mr M P Cornes
Solicitors:
First Plaintiff : Solomon Brothers
Second Plaintiff : Solomon Brothers
First Defendant : Minter Ellison
Second Defendant : Phillips Fox
Third Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 4)
1 EM HEENAN J: These are applications by the parties in two separate actions pending in the Court for the actions to be consolidated.
2 The two actions respectively are CIV 1707 of 2003, an action in which Clambake Pty Ltd is plaintiff, Tipperary Projects Pty Ltd and Warren Perry Anderson are the first and second defendants respectively - that is an action by a landlord against a tenant and a guarantor of the tenant's liabilities under a lease for alleged arrears of rent payable under the lease. This I have called "the rent action". The second action, CIV 2093 of 2003, is between Owston Nominees No 2 Pty Ltd and Tipperary Projects Pty Ltd as the first and second plaintiffs respectively, and Clambake Pty Ltd, Land Capital Pty Ltd and Ivor Frederick Cohen as the first, second and third defendants respectively. That is a complicated action, but essentially it concerns claims for damages for the loss or destruction of items of personal property housed in the premises which were the subject of the lease in the earlier action. I have called this "the damages action".
3 Those premises were destroyed by fire and the contents which had been stored in them were also destroyed. The contents, or parts of them, so it is alleged, were owned respectively by the first and second plaintiffs in the damages action. Their claim for damages is not confined to a claim against the landlord, but is brought also against the second and third defendants who are other persons alleged to be associated in the management, care and protection of the property stored in the destroyed premises.
4 In the second action there are a series of causes of action advanced which are too numerous to mention at this moment. As appears from what has already been noted, of the five parties, two plaintiffs and three defendants in the damages action, only two are parties to the rent action. The third party in the rent action is not a party to the damages proceedings.
5 Because of a large degree of common ground in the factual disputes relating to the destruction of the leased premises by fire, the nature of the liability, if any, for the cause of that destruction and the existence of duties owed as alleged to the plaintiffs who deposited property which was stored in the leased premises, it is obviously convenient, at least at this stage, to contemplate that there will be one trial at which all these issues can be heard and determined and for that reason an order for consolidation, or for a joint hearing, is plainly appropriate. That is not in the least contentious and all the parties accept that to be the case.
(Page 5)
6 The application for consolidation before me, however, assumes that as a result of the consolidation there will only be one action in which one or more of the parties mentioned will be the designated plaintiff or plaintiffs and that the others will be designated defendants, some of whom will be making counterclaims. A consequence of that assumption is that there would be the one statement of claim by the designated plaintiff or plaintiffs followed by a defence by each of the defendants and counterclaims where appropriate.
7 That assumption has led to contention between the parties to all the proceedings as to whom should be named plaintiff and which should be the so-called "lead action" carrying with it certain advantages and initiatives. It seems to me, however, that that is not the more desirable way of proceeding and that in fact, while there should be an order for consolidation, the two sets of proceedings should retain their separate identities with subsets of pleadings in each, but in the anticipation of a joint trial, and that is the order which I will make.
8 The reason for this is that not all the issues arising in these two contested sets of proceedings are common to all the parties because of the differences which I have indicated. The fact that Mr Anderson is a party only as a defendant in the rent action means that he has no interest, personally, in the other action. Similarly, that Owston Nominees, Land Capital Pty Ltd and Mr Cohen are parties to the damages action but not to the rent action, means that none of them has any personal interest in the rent action.
9 To order a consolidation which would put all parties into either the single category of plaintiffs or defendants in a consolidated action would, I consider, risk confusion and potential prejudice to those individuals or parties who are not involved in both sets of proceedings. It may also cause controversy and even perhaps potential prejudice in deciding who may begin the proceedings and where the onus of proof lies in any particular circumstance. Those difficulties seem to me to be best avoided and there is no point in risking their occurrence at all if they can be readily removed. Preserving the distinct character of each separate action does, in my view, offer the best prospect of such a beneficial consequence.
10 Accordingly, what I propose is that there will be an order consolidating the two actions by directing that the proceedings will be consolidated. This will result in action number CIV 1707 of 2003 being recorded as the first action, simply because it was commenced first in time, and action CIV 2093 of 2003, which is to be consolidated with it,
(Page 6)
- will be the second action. The title in the proceedings will therefore be CIV 1707 of 2003, then reciting the plaintiff, first defendant and second defendant as already named, followed by a description "consolidated with action CIV 2093 of 2003", and then nominating the five parties to that action as already recorded.
11 I will further order and direct that in the consolidated actions there will be a need for the delivery and exchange of pleadings including counterclaims, if any, which are directed to the single action concerned. The result will be that there will be, once pleadings have closed, a conventional set of pleadings in CIV 1707 of 2003 followed by a separate but conventional set of pleadings in CIV 2093 of 2003. To the extent, if any, that the parties in one or both of the actions may wish to assert that the subject matter of the other action may result in a counterclaim or set-off in the other proceeding, it will not be necessary to recite in the pleading the full details of that set-off or counterclaim beyond making reference to the counterclaim or set-off and the facts relied for it which are set out more fully in the pleadings in the other action. If any difficulties arise in this regard they can be dealt with at future directions hearings.
12 As these two consolidated actions continue to proceed there will no doubt be requests for discovery and other interlocutory processes in the two sets of proceedings. They should be initiated in the normal way in each action, but some attention has been given to this today with particular regard to the questions of discovery and inspection. To the extent that discovery and inspection affect those parties who are common to both actions, namely Clambake Pty Ltd and Tipperary Projects Pty Ltd, I will direct that discovery by those two parties may be given in one composite affidavit of discovery by each of them dealing with both claims and that inspection can be conducted in a similar fashion.
13 It will be necessary, in due course, to consider whether or not any directions should be given about evidence in one action being regarded as admissible as evidence in the other and vice versa. I consider that any such directions would best be left until pleadings have closed and more is known about the issues which are dividing those parties. It seems to me, at this stage, that at least insofar as concerns the common parties, Clambake Pty Ltd and Tipperary Projects Pty Ltd, such orders should probably be made but I am not satisfied that such orders should be made for or against parties who are not in both actions, although it may be that to a greater or lesser extent such directions would be justified if the evidence is from witnesses who would be expected to be called for or against the issues arising in the action to which that party is a defendant or
(Page 7)
- plaintiff as the case may be. Again, if difficulties arise in this regard the matter can be dealt with on a further directions hearing, and it will certainly be necessary to give some directions of this kind at or about the time when the matters are listed for trial.
14 That seems to dispose of the issues which are before me today and I will invite counsel to confer with a view to agreeing upon a minute which will give effect to this decision, and if necessary, contain a timetable for the delivery and exchange of pleadings in the two actions. In the absence of agreement I will determine any remaining controversy on written submissions which should be lodged within 14 days. It seems to me the cost of these applications should be reserved in each of the two actions.
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