CLAMBAKE PTY LTD -v- TIPPERARY PROJECTS PTY LTD & ANOR [2004] WASC 104

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 104
Case No:	CIV:1707/2003	Heard:	11 MAY 2004
Coram:	EM HEENAN J	Delivered:	11/05/04
No of pages:	7	Judgment Part:	1 of 1
Result:	Order for consolidation
Category:	B
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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

CITATION : CLAMBAKE PTY LTD -v- TIPPERARY PROJECTS PTY LTD & ANOR [2004] WASC 104 CORAM : EM HEENAN J HEARD : 11 MAY 2004 DELIVERED : 11 MAY 2004 FILE NO/S : CIV 1707 of 2003 BETWEEN : CLAMBAKE PTY LTD (ACN 009 242 371)

Plaintiff

AND

TIPPERARY PROJECTS PTY LTD (ACN 054 744 713)

First Defendant

WARREN PERRY ANDERSON

Second Defendant

FILE NO/S : CIV 2093 of 2003 BETWEEN : OWSTON NOMINEES NO 2 PTY LTD (ACN 001 769 099)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clambake Pty Ltd v Tipperary Projects Pty Ltd

Details

AGLC: Clambake Pty Ltd v Tipperary Projects Pty Ltd [2004] WASC 104
Case: [2004] WASC 104
Decision Date

CaseChat Overview and Summary

Clambake Pty Ltd sought to consolidate two separate proceedings against Tipperary Projects Pty Ltd and other parties before the Supreme Court of Western Australia. The first proceeding was a claim for unpaid rent by Clambake against Tipperary and a guarantor, while the second proceeding was a damages claim for destroyed property against Clambake, Tipperary, and other parties. The court heard the applications to consolidate the proceedings on 11 May 2004, delivered its decision the same day, and granted the applications with directions to preserve the separate identities of the two proceedings to avoid confusion and potential prejudice. The court directed that the two proceedings be consolidated into one action, with the first proceeding recorded as the main action and the second proceeding as a consolidated action. The court also directed that the parties exchange pleadings in each action, and that discovery and inspection be conducted in a composite affidavit for the common parties. The court reserved the issue of admissibility of evidence between the two actions until more was known about the issues dividing the parties. The costs of the applications were reserved in each of the two actions.

Orders