Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 5] - [2009] WASC 141

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CLAMBAKE PTY LTD -v- TIPPERARY PROJECTS PTY LTD [No 5] [2009] WASC 141

CORAM: EM HEENAN J

HEARD: 11-13 MAY 2009

DELIVERED : 20 MAY 2009

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
LAND CAPITAL PTY LTD (ACN 058 548 806)
Second Defendant
IVOR FREDERICK COHEN
Third Defendant
WARREN PERRY ANDERSON
Defendant to counterclaim

Catchwords:

Calculation of interest - Dates upon which interest under s 32 is to run - Costs, contractual claim for costs - Taxation of costs - Reference to registrar - Application to strike out amended claims - Estoppel - Res judicata - Abuse of process - Privity of interest - Claims for relief under s 80 and s 87 of the Trade Practices Act - Relationship between new claims and causes of action determined in proceedings to date - Possibility of inconsistent judgments - Application for extension of order suspending execution of judgment - Significance of appointments of receivers to judgment creditor - Relationship between judgment creditor and other parties - Whether special circumstances justifying extension of order suspending execution - Case management considerations for disposition of new issues

Legislation:

Civil Enforcement of Judgments Act 2004 (WA)
Legal Profession Act 2008 (WA)
Supreme Court Act 1935 (WA)
Trade Practices Act 1974 (Cth)

Result:

CIV 1707 of 2003
Contractual claim for costs referred for inquiry by a registrar

CIV 2093 of 2003
Interest payable upon whole of judgment in fire claim in the amount of $5,476,711.43
Application to strike out portions of amended counterclaim and new cross-claim dismissed
Application for summary judgment on defence to new counterclaim dismissed
Order for suspension of judgment in fire action extended until further order

Category: A

Representation:

CIV 1707 of 2003

Counsel:

Plaintiff:     Mr P J Deakin QC & Mr S E McCarthy
First Defendant              :     Mr S Rushton SC & Mr J Giles
Second Defendant         :     Mr S Rushton SC & Mr J Giles

Solicitors:

Plaintiff:     Minter Ellison
First Defendant              :     Solomon Brothers
Second Defendant         :     Solomon Brothers

CIV 2093 of 2003

Counsel:

First Plaintiff                  :     Mr M L Bennett
Second Plaintiff             :     Mr S Rushton SC & Mr J Giles
First Defendant              :     Mr P J Deakin QC & Mr S E McCarthy
Second Defendant         :     Mr G R Hancy
Third Defendant            :     Mr P J Deakin QC & Mr S E McCarthy
Defendant to counterclaim    :     Mr S Rushton SC & Mr J Giles

Solicitors:

First Plaintiff                  :     Lavan Legal
Second Plaintiff             :     Solomon Brothers
First Defendant              :     Minter Ellison
Second Defendant         :     Sparke Helmore
Third Defendant            :     Minter Ellison
Defendant to counterclaim    :     Solomon Brothers

Case(s) referred to in judgment(s):

Ann Street Mezzanine Pty Ltd (In Liq) v Beck [2009] FCA 333
Bradley v Eagle Star Insurance Co Ltd [1989] AC 957
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Burnet v Francis Industries PLC [1987] 1 WLR 802
Canon Australia Pty Ltd v Patton [2007] NSWCA 246; (2007) 244 ALR 759
Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In Liq) (1993) 43 FCR 510
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gracechurch Holdings Pty Ltd v Breeze (1992) 7 WAR 518
Greenco Pty Ltd v Wilden Pty Ltd (Unreported, 10 October 1997, Library No 970517)
Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (In Liq) [2008] FCA 1920; (2008) 252 ALR 41
Kuligowski v Metrobus (2004) 220 CLR 363
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68
Murphy & Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388
New Resource Holdings Pty Ltd v Lunt (No 3) [2008] WASC 221
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
State Bank of Victoria v Parry [1989] WAR 240
Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406
Wardley Australia Ltd v State of Western Australia (Rothwells Loan Case) (1992) 175 CLR 514

EM HEENAN J: Following the delivery of reasons for decision in these two cases on 9 March 2009 and the entry of formal judgments by orders made 20 March 2009 there were a number of outstanding issues left for resolution. Pursuant to leave granted on 20 March 2009 Mr Warren Perry Anderson was added, for the first time, as a party to the proceedings in the fire claim (CIV 2093 of 2003) as an additional defendant in the counterclaim. Because of further amended pleadings relating to this new counterclaim against Mr Anderson and for other reasons a series of applications has been made to dispose of the outstanding issues and the new issues so arising.
Issues specifically remaining outstanding following my decision of 9 March 2009 and the orders for judgment of 20 March 2009 are:
(a)the claim by Clambake against Tipperary Projects (Tipperary) and Mr Anderson as guarantor in the rent action pursuant to contractual terms in the lease as assigned and extended which provide for the landlord, Clambake, to recover against the tenant, Tipperary, and its guarantor, Mr Anderson, legal costs, charges and expenses for which the lessor should become liable in consequence of or in connection with any default by the lessee in performing or observing any of the covenants, conditions or stipulations contained or implied in the lease (the 'contractual costs issue');
(b)the progress, defence and determination of Clambake's claim against Tipperary (on the counterclaim in the fire action) for damages for the alleged breach of a covenant to insure in joint names with Clambake the demised premises against the loss which materialised (the 'failure to insure' issue);
(c)the basis for calculation and quantification of interest upon the judgment in favour of Owston against Clambake in the fire claim pursuant to s 32 of the Supreme Court Act.
That these matters required further attention and had been specifically deferred for future resolution appears from [147] ‑ [150] and [479] ‑ [511] of my earlier reasons for judgment and in the orders made on 20 March 2009.
In the rent action Clambake obtained judgment against Mr Anderson as guarantor of the liability of Tipperary to pay rent and other moneys due. However, although in the fire claim Clambake sought and obtained an order against Tipperary to indemnify it for the damages which Clambake was ordered to pay to Owston, a claim which succeeded because of the provisions of cl 4.01 of the lease, no corresponding claim was made in the fire action counterclaim for a similar indemnity from Mr Anderson in his capacity as guarantor of the liabilities of Tipperary. In fact, Mr Anderson was not a party to the fire claim at any time up until after the point when judgment was entered.
For reasons which I gave on 20 March 2009, leave was granted to Clambake to join Mr Anderson as an additional defendant in the fire claim in order for it to proceed against him to claim an indemnity, in his capacity as guarantor, for the obligations of Tipperary to indemnify Clambake for its liability to Owston on the judgment entered. The principal reasons for allowing such a development at such a late stage were the fact that no such claim had previously been made or determined against Mr Anderson and that, on the appearances, had Mr Anderson not been joined in these proceedings, Clambake would have been able to commence a fresh action to pursue that claim. If that were to be done much time and expense would be incurred. The scope for dealing with this new claim by treating it as supplemental to the present action offered the prospect of efficiency, expedition and costs savings. This assumption that Clambake would have been free to commence fresh proceedings against Mr Anderson to advance this claim for indemnity against him in his role as guarantor is now being called into question in some of the applications which have now been made and heard.
Consequently, since 9 March 2009:
(a)Clambake has provided details, contained in affidavits, of the nature and extent of its claim for costs against Tipperary and Mr Anderson on that contractual costs issue;
(b)Owston has sought an order quantifying the interest which it claims against Clambake on its judgment in the fire claim pursuant to s 32 of Supreme Court Act;
(c)Clambake has filed and delivered an amended claim against Tipperary, and the new cross‑defendant, Mr Anderson, in the fire action for damages for the alleged failure to insure, for which it contends Mr Anderson is concurrently liable as guarantor;
(d)Clambake has filed a pleading in its amended counterclaim against the new cross‑defendant, Mr Anderson, seeking declarations and orders to that effect that, as guarantor, he is obliged to satisfy the indemnity under which Tipperary has been found liable to Clambake for the latter's liability to Owston for damages and interest in the fire claim; and
(e)amended defences to the Clambake counterclaims for damages for failure to insure, and for indemnity, have been filed and delivered by Tipperary (in relation to the failure to insure issue) and by Mr Anderson in relation to both the failure to insure issue and the new claim for indemnity, seeking, among other things, relief pursuant to ss 80 and 87 of the Trade Practices Act 1974 (Cth) to the effect that the misleading and deceptive conduct which was found to have been established by Owston against Clambake, will of necessity, or alternatively on the merits, entitle both Tipperary and Clambake to relief in the shape of special orders under s 87 of the Trade Practices Act or otherwise excluding Tipperary (on the failure to insure claim) and Anderson, on both the failure to insure claim and on the new claim for indemnity, from any liability under the terms of the lease.
Furthermore, on 20 March 2009 I ordered that there should be a temporary order for the suspension of enforcement of the judgment granted in favour of Owston against Clambake on the fire claim and Clambake has now made an application for a further extension of that order. This is opposed by Owston, which appears by new counsel and solicitors following the appointment of two sets of receivers to manage the affairs of that company.
In view of some of these developments, Tipperary and Mr Anderson, as defendants in the counterclaim in the fire action, have moved to dismiss the claims brought against them by Clambake for damages for failure to insure and for indemnity. That application is by summons filed 24 April 2009 for judgment in favour of Tipperary and Anderson on those claims respectively.
All these matters were heard before me on an extended chambers hearing on 11, 12 and 13 May 2009. In the course of that hearing I determined and made orders to dispose of the issues relating to the contractual claim for costs, and the claim for interest in the fire action, but I will briefly repeat the reasons for those decisions and the orders then made. I did, however, reserve my decision on the matters arising from the amended pleadings and the new claims against Mr Anderson and I address those issues now.
At hearing these applications, counsel for Land Capital, against whom all claims have already been dismissed, made a further appearance and moved urgently for an interlocutory injunction to restrain the newly appointed counsel and solicitors now acting for Owston from continuing to act on the grounds of an alleged conflict of interest and a potential risk of the misuse of alleged confidential information. That application was made on 12 May 2009 and was heard and determined as a matter of urgency that afternoon. Upon the application being made, counsel for Clambake announced that his client desired to join in and support the application and a similar joinder and support was sought and advanced by Mr Cohen personally, although, like Land Capital, all claims in the action against him had been dismissed.
For reasons which I gave at the end of the hearing of that application on 12 May, and which are being published separately, those applications were dismissed. These reasons, therefore, deal with the other applications made and heard over those three days.

Costs pursuant to the lease

As noted, the nature of the issues relating to this claim for the payment of costs pursuant to a contractual obligation in the lease has been described in [147] ‑ [150] of my reasons of 9 March 2009. The vital point is that, being a claim for moneys due pursuant to contract, the onus rests on the plaintiff to prove the amount of the claim. In this way, the claim differs from the usual entitlement of a successful party in litigation to recover its taxed costs of the action because, in this latter case, the right to costs derives from the order of the court and the quantification of the costs is subject to assessment by the taxation process conducted in accordance with applicable or analogous statutory scales of costs.
Despite being a claim for costs pursuant to contract, Tipperary and Mr Anderson both submitted that they are entitled, being parties to be charged, to have the quantum of the costs reviewed by a process of taxation under s 228 of the Legal Profession Act 2008 (WA). That is acknowledged by Clambake. Such a process of taxation will proceed on a different footing than a taxation conducted pursuant to an order of the court in favour of a successful party in litigation. In the first place, the costs incurred will have been incurred between a solicitor and client pursuant to a contract, not by the party to be charged. Subject to the provisions of the Legal Profession Act and any relevant solicitor and client costs agreement, insofar as that may apply, the costs payable will be those agreed between the solicitor and client although, as a third party exercising the right to have those costs taxed pursuant to the Legal Profession Act, parties in the position of Tipperary and Mr Anderson will have the right to have the taxing officer determine whether or not, having regard to all those circumstances, the costs as charged are indeed proper, and only the proper costs, as so determined, will be recoverable pursuant to the contractual provisions by which Tipperary and Mr Anderson agreed to pay those costs which Clambake incurred.
Since the judgment in March Clambake has filed an affidavit annexing many invoices and other documents from solicitors, counsel or others, documenting the charges which it paid, allegedly in connection with or in association with Tipperary's default under the lease and quantifying its claim. It therefore sought an order that Tipperary and Mr Anderson should each be obliged to pay those costs as taxed, by an officer of this court, 'on an indemnity basis'.
To my mind, this blurs the distinction between the claim under the contract for costs incurred by Clambake with its solicitors and counsel, and a claim for costs of the action in the jurisdiction of the court. It also overlooks the need for Clambake to prove, as part of its contractual claim, the quantum of the liability sought to be recovered. In my view, from the perspective of principle, the proper course is for the quantum of the costs recoverable to be determined, on the basis of a taxation demanded at the instance of Clambake and Mr Anderson, but on the footing of a taxation of costs as between solicitor and own client pursuant to the provisions of the Legal Practitioners Act. Once the result of the quantification of costs has been determined by such a process, it would then be possible for Clambake to adduce the result as evidence in these proceedings which would, in the absence of other considerations, then establish the indebtedness for which Tipperary and Mr Anderson are liable under the provisions of the lease, and thereupon entitle Clambake to judgment for that sum.
However, it was submitted that there may be a number of practical inconveniences or delays associated with such a course such as, for example, possibly a need for Tipperary and Mr Anderson to seek and obtain leave to have such costs taxed after the expiration of any relevant time period, if that has, in fact, elapsed. In my view, those difficulties can be avoided, and much time and expense saved, by the court now directing that pursuant to s 50 of the Supreme Court Act this issue about the contractual costs claim shall be referred to a registrar of the court for the purposes of conducting an inquiry and making a report to the court of the amount which it would be proper to allow as the costs chargeable to Clambake by its solicitors and counsel for those professional services, charges and expenses for which Clambake had become liable in consequence of or in connection with any default by Tipperary in performing or observing the covenants, conditions or stipulations contained or implied in the lease.
In conducting such an inquiry the registrar shall be able to, and I direct that he or she shall, report on whether any challenged item has or has not been incurred in consequence of the matters provided for in the lease, and to determine the proper costs for which the parties to be charged, Tipperary and Mr Anderson, shall be liable. In making this order and these directions I further direct that the registrar shall, in undertaking this inquiry, have all or any powers such as may be necessary or applicable to vary, extend or to dispense with limits provided in any applicable scale of costs having regard to the complexity, importance and nature of the matters involved. The registrar will, in conducting this inquiry, allow the parties to be heard and may take such evidence, if any, as may be thought relevant by the registrar for the purposes of conducting and completing the inquiry.
Upon the inquiry being completed, the result is to be reported to the court at which point the parties will be given an opportunity to make further submissions before I consider what judgment, if any, should be entered in favour of Clambake in respect of these costs. I directed that the parties should confer with a view to agreeing upon a minute setting out orders and directions to give effect to this decision and, once that has been agreed or determined, the orders can be made.

Costs of the GST issue

In addition to the question of how, and on what basis Clambake's contractual claim for costs should be resolved there was an issue between Clambake, Tipperary and Mr Anderson over whether or not the contractual costs recoverable should include those associated with the 'GST claim'. In my reasons of 9 March 2009 at [112] ‑ [128] I addressed the claim advanced by Clambake for the recovery of GST upon the base rent, the increased rent and variable outgoings and, for reasons there given, concluded that GST was not chargeable upon those obligations under the lease and that, accordingly, the claim in that respect was not maintainable. Had GST been chargeable on those components of the moneys due under the lease then the whole of the amount of the GST would have been payable by Clambake to the Federal Commissioner of Taxation or otherwise in accordance with the GST legislation resulting in no net benefit to Clambake.
Because of this result, counsel for Tipperary and Mr Anderson have submitted that Clambake failed on this discrete issue and, accordingly should not be awarded costs on an issue which plainly generated the need for professional time, attention and expense so that, accordingly, any order dealing with the claim for costs should include a provision excluding any entitlement to recovery of legal and professional costs and expenses associated with the GST claim.

Again, however, Clambake's entitlement to costs under the lease does not depend directly upon the principles or analogies which apply to orders for costs made by the court in litigation under its inherent or statutory jurisdiction. As said before, the entitlement depends upon the terms of the contract and this lease contains a provision by which Clambake agreed to pay on demand all legal costs etcetera for which the lessor shall become liable 'in consequence of or in connection with any default by the lessee…'.
There can be no doubt that Tipperary defaulted in making payments of rent under this lease and continued that default for a long time during which the GST legislation first became applicable. In those circumstances, it was inevitable that a question of whether or not GST was chargeable in respect of the rent, increased rent or outgoings due under the lease should arise. That question was not straightforward or capable of easy resolution and, clearly enough, the parties were divided on that issue at the commencement and during the course of the trial.
The position of Clambake, not unreasonably, was that if there were such an obligation it would fall primarily upon Clambake and that it therefore needed an authoritative resolution of its position. As I observed to counsel during the course of the argument, the situation was not dissimilar to the position which would have existed had Clambake merely sought a declaration in these proceedings as to whether or not GST was chargeable. If that procedure had been followed it could hardly be doubted that the question of whether or not associated legal costs charged and expenses for which Clambake had been liable in pursuing and obtaining such a declaration had occurred in consequence of, or in connection with, Tipperary's default in making payment under the lease, notwithstanding that the same question may have arisen even if there had been no default. I was satisfied that the issue of whether or not GST was payable was one which had reasonably arisen and that Clambake was justified in seeking a determination by the court on the issue. On any approach this issue had arisen in connection with Tipperary's default and, accordingly, I ordered that the contractual claim for costs should include proper costs in connection with the GST claim notwithstanding, that in the end, I decided that GST was not chargeable.

Interest on the judgment in favour of Owston on the fire claim

In my reasons for decision of 9 March 2009 I concluded that Owston was entitled to recover damages against Clambake for $14,625,400 for the destruction of its property caused by the fire. In its pleadings Owston had sought interest upon any award of damages pursuant to s 32 of the Supreme Court Act but no submissions as to the amount of interest sought, from when it should run, or whether it should be calculated on all or part of the damages were made by either party during the course of the trial. Accordingly, when entering judgment I made orders to provide an opportunity for Clambake and Owston to make further submissions in relation to the interest and, if possible, to reach agreement upon associated issues.
Consequently, Owston and Clambake have reached a partial, but incomplete, agreement in relation to these matters. Each has agreed that some of the damages should bear interest at 6% per annum (simple interest) from the date of the fire until the date of judgment. However, the area of disagreement relates to the damages awarded in respect of the destruction of the Croome Court book case which, as part of the agreement between the parties over the quantum of the property destroyed, was said to be worth $2 million, which has been included in the damages awarded.
The position of Clambake is that the agreement upon the value of the Croome Court book case must be taken to have represented, either expressly or implicitly, the value of replacing that book case as at some date in about July 2007 rather than the value of the book case at the date of the fire. Clambake submits that the value as the date of the fire should be regarded as significantly less. The position of Owston, however, is that again, by necessary implication, the agreement for the value of the Croome Court book case must be taken to apply to its value at the date of the fire because that was the only relevant date then under consideration and was, indeed, the date upon which valuations of all other items of destroyed property were either agreed or estimated.
At the trial no evidence was led, nor were any submissions made, about the date to which the $2 million value attributed to the Croome Court book case applied. In oral reasons which I gave on 11 May 2009 I considered that, in the context, the correspondence leading to the agreement upon the value of the Croome Court book case, although ambiguous on this point, must be construed on the footing that the figure was for the value at the date of the fire, because that was the only relevant reference date. However, even if that were not so, the reported value was agreed and put into evidence without qualification and I consider that it is now far too late to reopen this issue or to allow it to be disputed.
As observed by all members of the court in Metwally (No 2) v University of Wollongong (1985) 60 ALR 68, 70:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
While it is the case that the question of from what date or dates any entitlement to interest on damages in the fire claim should run was not the subject of evidence or submission at the trial, the claim for interest had been advanced in the pleadings and the trial was conducted on the basis that the values of the items of property destroyed in the fire were their values at the date of the fire. If any party had wished to contend to the contrary that could have been done by adducing any material evidence bearing on such an issue in the course of the trial.
Accordingly, I determined and directed that interest on the judgment in favour of Owston, insofar as the damages related to the Croome Court book case, should also be calculated as from the date of the fire to the date of judgment.
Since then the parties have agreed upon the total calculation of interest for all items in the award of damages in favour of Owston from the date of the fire until the date of judgment. The agreed figure is $5,476,711.43 and, consequently, Owston becomes entitled to have that sum added to the damages assessed of $14,625,400 and for the total judgment in its favour in aggregate to be $20,102,111.43 and for this to take effect from the date of judgment on 20 March 2009.

Applications by Tipperary and Mr Anderson to dismiss the new and remaining claims by Clambake

It is necessary to identify specifically the new and remaining claims by Clambake which are the subject of these applications by Tipperary and Mr Anderson. They are:
(a)the new claim introduced by Clambake, in its counterclaim in the fire action, against the new cross‑defendant, Mr Anderson, for declarations and orders to the effect that, as guarantor of the lease, he is also bound to indemnify Clambake for its liability under the judgment entered in the fire action to pay damages to Owston in the amount of $14,625,400 plus interest of $5,476,711.43, totalling $20,102,111.43 by virtue of the provisions of cl 4.01 of the lease;
(b)the claim by Clambake against Tipperary for damages for the alleged failure to insure;
(c)the new claim by Clambake in the counterclaim in the fire action against the new cross‑defendant, Mr Anderson, that as guarantor of the lease he is also obliged to meet the liability of Tipperary for damages for failure to insure the demised premises (this issue as against Tipperary having been ordered to be tried subsequently);
(d)that notwithstanding my reasons for decision of 9 March 2009 and the orders for judgment of 20 March 2009 declaring Tipperary to be liable to indemnify Clambake for its liability under the judgment in the fire claim in favour of Owston, the new defence that Tipperary should have relief in the nature of an injunction under s 80 of the Trade Practices Act or other orders under s 87 of the Trade Practices Act, preventing Clambake from enforcing that liability against it.
Each of these claims is made independently and counsel for Tipperary and Mr Anderson, both in their written and oral submissions, stressed that success or failure on any one or more of the challenges should not necessarily automatically lead to corresponding success or failure on the other or others. I accept that that is the correct position.
The grounds for the several applications are that:
•Clambake's amended counterclaims disclose no reasonable cause of action (RSC O 20 r 19(1)(a));
•Clambake's amended counterclaims should result in orders for summary judgment in favour of Mr Anderson and, where applicable, Tipperary (RSC O 16);
•the counterclaims are each an abuse of process and should be struck out (RSC O 20 r 19(1)(d)) and also under the court's inherent jurisdiction.
By contrast, when responding to these applications counsel for Clambake has submitted that:
(a)insofar as the applications seek or foreshadow relief preventing the enforcement of the indemnity which Tipperary has been adjudged to have to Clambake in respect of Clambake's liability to Owston for damages on the fire claim, that issue has already passed into judgment and is a res judicata which cannot be revisited or reopened except on appeal from the judgments and orders of 20 March 2009;
(b)insofar as the applications seek to dismiss or strike out Clambake's claim for damages against Tipperary for the alleged failure to insure, that issue has also been determined by the reasons for decision of 9 March 2009 and the judgment and orders of 20 March 2009 and cannot be revisited except on appeal; and
(c)the decision of 9 March 2009 and the orders of 20 March 2009 which determined that Tipperary is bound to indemnify Clambake for Clambake's liability under the judgment to Owston have the effect of preventing Mr Anderson from denying that he is not liable as guarantor of Tipperary also to meet that liability in light of the further findings that:
(i)Mr Anderson is liable under the guarantee to Clambake for the outstanding rent and other moneys found due in the rent action ; and
(ii)Mr Anderson is a person whose liability and interest as guarantor is privy to the interest of Tipperary which has already been determined as being liable to indemnify Clambake for its liability to Owston in the fire claim.
(d)that because the rent action and the fire claim were consolidated by the order which I made on 24 June 2004, they have both become, in effect, one action. On this basis, because Mr Anderson was a party to the rent action, he also became bound by all determinations and orders in the fire claim, meaning that he is bound by the declaration that Tipperary is obliged to indemnify Clambake for its liability under the judgment in the fire action, and by the determination in the rent action that he is liable as guarantor under the lease.
These varying contentions all derive, to a great extent, from the history that certain claims were not advanced by Clambake at the original trial and also because certain defences were not relied upon by Tipperary in the original trial. As is already apparent:
(a)Clambake did not advance its claim for damages for the alleged failure to insure until too late for that claim to be addressed at the trial, but even when it did make that claim in the week before the commencement of the trial, it was made only against Clambake and not also against Mr Anderson as guarantor;
(b)in its counterclaim in the fire action Clambake sought an order for an indemnity against Tipperary under cl 4.01 of the lease for any liability for damages which it might be found to have to Owston. It succeeded in that claim but it had not made any similar claim against Mr Anderson as guarantor for Tipperary's liabilities until after judgment when it was granted leave to join Mr Anderson as a cross‑defendant in the fire claim for the first time;
(c)in the counterclaim in the fire action Tipperary defended Clambake's claim for an indemnity under cl 4.01 of the lease on grounds which, essentially, related to the proper construction of that clause in the events which had happened but without relying upon any grounds of defence or further cross‑claim for relief under s 80 or s 87 of the TPA.
Despite their written submissions that, notwithstanding the results of the trial, Tipperary is still entitled to relief under s 80 or s 87 of the Trade Practices Act which would have the effect of preventing Clambake from enforcing the indemnity which I have adjudged Tipperary has under the lease for Clambake's liability to Owston; the result of the oral submissions on these applications has been that counsel for Tipperary now effectively accepts that, short of a successful appeal, it is bound by my decision that it must indemnify Clambake as I have declared it is liable to do.
This means that on the new and amended pleadings in the claims by Clambake against Mr Anderson for an indemnity of Tipperary's liability to Clambake under cl 4.01 of the lease, there is the possibility that, if the defences now relied upon by the new party, Mr Anderson, raised for the first time in reliance upon s 80 and s 87 of the TPA, there could be a judgment or determination concerning Mr Anderson's liability to indemnify which would be inconsistent with the determination already made about the liability of Tipperary to so indemnify Clambake. That possibility, so submitted counsel for Clambake, is utterly repugnant to the principle that the parties should be bound by their conduct of the proceedings and that the parties to the proceedings. Clambake submits their privies are bound by the determinations in the proceedings, and that this principle extends to Mr Anderson in his individual capacity having regard to his close association with, and control of, Tipperary in the proceedings to date.
By submissions relying upon analogous reasoning, counsel for Mr Anderson submits that it would also be repugnant to those same principles if Clambake were now to be permitted to pursue claims for damages and indemnity against Mr Anderson for causes of action which could, and should, have been brought by Clambake in the original proceedings.
Mr Anderson and Tipperary each also submits that the findings already made in the fire action have determined that Clambake is liable for damages for misleading and deceptive conduct causing Tipperary to enter into the lease and causing Owston to place and leave its valuable property in the store room in circumstances where there was inadequate fire sprinkler protection, and that those findings necessarily conclude the related allegations now advanced by Mr Anderson and by Tipperary that they should be relieved from any obligation under the lease for damages for failure to insure or to indemnity Clambake for its liability to Owston under cl 4.01. This is said to be so because those contractual obligations, if they arise at all, arose and continued by the same misleading and deceptive conduct for which Clambake has already been adjudged liable.
These competing submissions obviously give rise to issues about the significance of the introduction of a new party, Mr Anderson, as a cross‑defendant to the counterclaim by Clambake in the fire action and of the introduction of defences, on his behalf, which were not raised in the proceedings before. These questions are all complicated, and in some respects interdependent, but are not capable of easy resolution. Nevertheless, so submits counsel for Tipperary and Mr Anderson, they depend upon the resolution of legal principles and, although involved, can and should be resolved on applications for striking out or summary determination of the claims: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

Res judicata, issue estoppel and abuse of process

Not only is it apparent that the question of that Tipperary's liability to indemnify Clambake for its liability under the judgment to Owston has been decided in favour of Clambake by the judgment already entered but, it is also apparent, that Clambake's associated cause of action for indemnity against Mr Anderson as guarantor of Tipperary's liabilities has not been determined and that Mr Anderson was not a party to the counterclaim which led to the declaration against Tipperary. Similarly, the defences now pleaded by Tipperary and Mr Anderson to the amended counterclaim by Clambake, both on the failure to insure issue and on the claim for an indemnity against Mr Anderson as guarantor of Tipperary's liabilities had not previously been raised or determined. They could have been raised by Tipperary in its defence to the counterclaim but were not. So far as Mr Anderson is concerned, he was not a party and had no occasion before now to raise them.
The significance of this background, for present purposes, is that insofar as Tipperary and Mr Anderson on the one hand, and Clambake on the other, contend that certain causes of action or issues cannot now be pursued or should be stayed, be struck out or be determined by a summary judgment, reliance is placed on the doctrines of res judicata (cause of action estoppel) issue estoppel and/or abuse of process. This makes it necessary to dissect and identify the causes of action and issues which have already been determined and those which one or more of the parties still seek to advance in order to ascertain whether, and if so to what extent, they may or may not now be pursued.
Despite a connection between the new grounds of defence sought to be relied upon by Tipperary and Mr Anderson under ss 80 and 87 of the TPA in opposition to Clambake's new or reserved claims, and the misleading and deceptive conduct leading to the judgment against Clambake in favour of Owston, it does not follow that the new causes of action are the same as the one which has already led to judgment in the fire claim. In Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406, 412 Gummow J wrote:
Recovery of loss or damage is the gist of the causes of action both at common law and pursuant to the statute. The nature of causes of action which may be vested in various parties by reason of the conduct of another or others in contravention of the provisions such as ss 52 and 53, or by reason of their involvement in such contravention (within the meaning of s 75B), was explained by the Full Court in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1988) 19 FCR 469. It emphasised that conduct by the one respondent may give rise to distinct claims by a plurality of applicants, each in its own right, seeking recovery of its own loss or damage. Each has, pursuant to the legislation, a right which may be described as a cause of action, but the right is not a joint right, if only because the loss or damage, the recovery of which is the gist of the action, will be sustained by and recoverable by each applicant for itself, alone and in its own right. It follows that disposal of a claim by one party will not bar the pursuit of the claims of the others. On any of the senses of the term, the cause of action will not be the same in each case: cf Walker v Bowry (1924) 35 CLR 48, 54 ‑ 55; Jackson v Goldsmith (1950) 81 CLR 446.

This decision of Gummow J was affirmed by the Full Court on appeal in Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In Liq) (1993) 43 FCR 510.
The cause of action by Owston against Clambake for damages for misleading and deceptive conduct, which has now merged into the judgment already entered, was for damages for the recovery of the loss and damage suffered by Owston by misleading conduct pursuant to s 82 of the TPA. The damage was suffered at the date of the fire and constituted the value of the property so destroyed.
The present claims are for damages by Clambake against Tipperary and now additionally against Mr Anderson for the alleged failure to insure, claims for damages for breach of contract as against Tipperary, for which it is alleged Mr Anderson is also liable as guarantor under his guarantee. Neither in the nature of the cause of action nor in the identity or quantum of the damages sought do either of these two related contractual claims coincide with the cause of action which has led to the entry of judgment in favour of Owston, notwithstanding that all three derived from the results of this fire.
Similarly, the new claims by Clambake introduced for the first time since the judgment of 20 March 2009 against Mr Anderson seeking orders or declarations that, as a guarantor of the lease he is also liable to indemnify Clambake for its liability to Owston under the existing judgment in the fire claim by reason of cl 4.01 of the lease, is entirely contractual and so is different in character from the cause of action which led to the judgment in favour of Owston. However, it is claim for an indemnity against a guarantor, not previously a party to the earlier action, in which the party whose liabilities were guaranteed (Tipperary) has been adjudged liable to indemnify Clambake under cl 4.01 and, therefore, one step in the claim against Mr Anderson has already been proved and concluded in the action which led to the declaration against Tipperary. Mr Anderson was not a party to that action but the question which arises is whether he was a privy in interest to Tipperary, having regard to all the circumstances, and is therefore bound by the judgment determining Tipperary's liability either as a result of a res judicata (which is binding upon him as a privy) or as an issue estoppel which he should not be permitted to controvert because such an attempt would, in the circumstances, be an abuse of process.
The defences and further cross‑claims by Tipperary (to the failure to insure claim) and by Mr Anderson (to both the claims for damages for failure to insure and for an indemnity pursuant to cl 4.01 of Clambake's liability to Owston) do seek to raise issues of alleged misleading and deceptive conduct. Each of those proposed defences or cross‑claims seeks orders under s 80 and/or s 87 of the TPA which would have the effect of preventing Clambake from enforcing the alleged contractual liabilities (s 80) or which would lead to such an order or orders as the court thought appropriate which would have the effect of modifying, avoiding or varying the terms of the contractual obligations under the lease and/or the guarantee to exclude any liability to indemnify or to pay damages because the contractual liability which, otherwise, may exist would lead to Tipperary and/or Mr Anderson suffering or being likely to suffer loss or damage by conduct of Clambake that was engaged in in contravention of s 52:
87(1) If the court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part, for the loss or damage, or will prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.
At this point I consider that it seems unlikely that Mr Anderson could expect to succeed in obtaining relief under s 80 in the form of an injunction if, for no other reason, than the jurisdiction conferred by that section involves the prevention of conduct engaged in or which is proposed to be engaged in which would constitute a breach of s 52. The misleading and deceptive conduct relied upon by the Anderson parties is all in the past and it cannot be suggested that by pursuing its contractual claims for damages or indemnities Clambake is engaged in or is proposing to be engaged in conduct which is misleading or deceptive. It is only pursuing contractual causes of action apparently open to it for which, if the Anderson parties' contentions are correct, they have good defences under s 87. Those claims can be determined upon their merits but there does not seem to me to be any basis upon which I could or should restrain Clambake from pursuing those causes of action or, for that matter, proceeding with or enforcing the declaration which has already been made against Tipperary to the effect that it is bound to indemnify Clambake for the latter's liability towards Owston.
Turning to the s 87 defences or cross‑claims by Tipperary and Mr Anderson against Clambake, it is apparent that the loss or damage which they seek to prevent or to have reduced is the loss or damage which each would suffer if required to meet Clambake's claim for damages for the alleged failure to insure and, in Mr Anderson's case alone, to join with Tipperary in indemnifying Clambake for its liability to Owston under the judgment which has been entered. Each of these potential liabilities for loss or damages is distinct, in character and as to the time of its accrual, from Clambake's liability to pay damages to Owston for the value of the property destroyed in the fire. As is apparent, each of the claims under s 87 is for relief against the imposition or effects of a contractual liability to pay damages or to indemnify, rather than a claim for damages for the value of property of either claimant destroyed by the fire (neither Mr Anderson nor Tipperary owned the antiques and other valuables destroyed by the fire).
Furthermore, in relation to the claim against Mr Anderson for an indemnity, the liability of an indemnifier does not accrue due at law until the indemnifier has paid the claim: Wardley Australia Ltd v State of Western Australia (Rothwells Loan Case) (1992) 175 CLR 514, 524 ‑ 525; Bradley v Eagle Star Insurance Co Ltd [1989] AC 957, 966; Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213; and Murphy & Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388, [46], [52].
Clambake's liability to pay damages to Owston in the fire claim resulted in the judgment in favour of Owston of 20 March 2009. That is the liability which Tipperary has been declared it must indemnify, and it is that liability for which Clambake is now claiming further contractual indemnity from Mr Anderson. Although in extent it is equal to Clambake's liability for damages to Owston, the cause of action for this indemnity arises by contract and from the date when the first indemnity is established or paid. It is therefore not the same as the liability which resulted in the judgment in favour of Owston against Clambake either in character or in date of origin.
This being so, there can be no res judicata or cause of action estoppel preventing Clambake from pursuing the claim for damages for the alleged failure to insure against either Tipperary or Mr Anderson nor any res judicata or cause of action estoppel preventing Mr Anderson from relying on a s 87 defence or cross‑claim in the new claim against him for an indemnity.
The question of whether or not there is a res judicata or issue estoppel preventing Tipperary from defending the claim for failure to insure is a different matter resting as it does upon the so‑called Anshun form of estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The particular position of Tipperary in relation to the defence of a claim for damages for failure to insure therefore involves this special additional factor and for that reason I shall defer dealing with that until later.
That a cause of action estoppel or res judicata will not apply in these circumstances, unless Mr Anderson is the privy of Tipperary, is established by Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853; Kuligowski v Metrobus (2004) 220 CLR 363; and Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (supra).
Two questions remain. Namely, whether Mr Anderson is the privy of Tipperary for these purposes and, if not, whether there is such an issue estoppel which prevents him, as a third party, from relying on the s 87 claims as a defence or cross‑claim to the new Clambake cause of action. Similar issues arise in relation to his proposed defence of the claim for damages for the alleged breach of the obligation to insure.
In the conduct of the fire claim at trial there was, as already remarked, no cross‑claim by Clambake against Mr Anderson. The only such claim was against Tipperary. There was, therefore, no need in the fire claim to consider or to determine whether or not Mr Anderson had executed the guarantee of the lease under the influence of or by the misleading or deceptive conduct found against Clambake. That question did simply not arise on any of the issues raised and, of course, Mr Anderson was not a party to the fire claim at that time. However, the case did proceed on the basis that the entry into the lease by Tipperary, the stocking of the warehouse with the valuables by Owston, and the continued storage of the valuables in the warehouse up to the date of the fire was caused by the misleading and deceptive conduct of Clambake. My findings were that had the fact been disclosed that the fire sprinkler system was not working and that the extant fire prevention system at the Claremont premises did not comply with the conditions of building approval granted by the Town of Claremont and, as required by the UBBLs, Tipperary would not have entered into the lease nor would Owston have placed the valuables in the storehouse or, if this had been discovered later, allowed them to remain on that location. There was no express finding that for the same or similar reasons, Mr Anderson would not have executed the guarantee, nor was any consideration given to whether, in those circumstances, the guarantee was not fully enforceable against Mr Anderson because of Clambake's misleading and deceptive conduct. Nevertheless, the trial proceeded on the footing that the control of Tipperary and Owston at the material times rested with Mr Anderson exclusively and that it was the influence of the misleading and deceptive conduct upon him which led to Tipperary taking the assignment and extension of the lease, with Mr Anderson himself giving the guarantee, Owston delivering the valuables for storage at the premises and for that state of affairs to continue as it did up until the fire. In the absence of any further evidence it would only be a short inevitable step to find that the entry into the guarantee by Mr Anderson was caused by the same conduct which led Tipperary to take the assignment but, I must stress, such a finding is yet to be made. Insofar as the applications by Mr Anderson include an application for summary judgment I would, if it were otherwise necessary to deal with that application, be disposed to make such a finding on the materials presently before me because I have been informed by counsel that neither Clambake nor Mr Anderson presently desire to adduce or elicit further evidence in this regard.
While, in his defence of the new cross-action relying on s 87 of the TPA, Mr Anderson contends that the guarantee, so far as it requires him to answer the liabilities of Tipperary to indemnify Clambake for its liability to Owston under the judgment is not enforceable, or fully enforceable, it has already been found that Mr Anderson is liable with Tipperary under the guarantee for the moneys due under the rent claim. This is a finding that, at least insofar as it relates to the claim in the rent action, the guarantee was valid and enforceable and, consequently, Mr Anderson's liability as guarantor on the rent claim has passed into a res judicata.
The point about the defence under s 87 of the TPA to the new claim by Mr Anderson is, however, not to contend that the guarantee is void or unenforceable for all purposes or ab initio. Plainly that could not be advanced having regard to the finding in the rent action. The claim is modified so as to provide, in effect, that insofar as the guarantee purports to render Mr Anderson liable for obligations of Tipperary which arise because of the consequences of the fire, it should not be enforced because of the alleged misleading and deceptive conduct.
This, in effect, acknowledges that the relief sought under s 87 would involve only a partial diminution in the effect of the guarantee and then only be related to the consequences of the fire, leaving it valid and enforceable in relation to other non‑fire related claims such as rent. That such a modification is possible is evident from the terms of s 87(2) itself but this distinguishes the present application for relief from the adjudication that Mr Anderson is liable under the guarantee for the rent claims because that liability did not depend, to any extent, upon the effect of the fire. The difference between the unqualified right to rent for periods of actual occupation of the premises by Tipperary, and a potential cross‑claim by Tipperary for damages arising from the fire (not in the end pursued) was noted in [154] and [163] of the reasons for judgment of 29 March 2009 when dealing with the pleas of Tipperary and Mr Anderson for setoff which I held could not have arisen even if Tipperary had obtained a judgment for damages in the fire action. Accordingly, it is this capacity for the statutory remedy under s 87 of the TPA to modify partially the effect of a contractual provision which distinguishes the present defence advanced by Mr Anderson on the guarantee from the finding that he was liable on the guarantee in the rent claim. There was not, nor could there have been, a defence by Mr Anderson or by Tipperary to the rent claim based on s 87 in view of the consideration which had already passed between between them and Clambake under the lease. On that point, therefore, not only has there been no res judicata but, in my view, there has been no issue estoppel either.

Privity of interest

One starts with the proposition that a judgment cannot bind a person who was not a party to the proceedings in which it was granted unless he is directed to be bound by it or is a privy: Gracechurch Holdings Pty Ltd v Breeze (1992) 7 WAR 518, which was case involving a guarantee and indemnity where a judgment had been entered in favour of the creditor against the principal debtor and also against one of two guarantors and the question was whether either of those two judgments was binding or admissible in separate proceedings against the second guarantor. The decision was that neither was. The conventional position was described by Pidgeon J at 519 ‑ 520 citing earlier binding authority:
In Begley v Attorney-General (NSW) (1910) 11 CLR 432 Griffith CJ said (at 439):
The law on the subject was explicitly laid down by the Court of Appeal in the case of Ex Parte Young; Re Kitchin (1881) 17 Ch D 668. The headnote to that case, which correctly states the effect of the judgments, is as follows:
In the absence of special agreement a judgment or an award against a principal debtor is not binding on the surety, and is not evidence against him in an action against him by the creditor, but the surety is entitled to have the liability proved as against him in the same way as against the principal debtor.
The same rule was recognised by Ipp J (522) who then progressed to deal with the exceptions to that rule. In that respect, his Honour said (523):
The mere bringing in of a third party does not qualify the general rule precluding the use of judgments against non‑parties or non‑privies and does not make the judgment in the action binding upon the third party: see The Millwall [1905] P 155 at 165. In cases involving indemnities, however, circumstances can arise entitling a person being indemnified to prove a judgment, obtained against him by a creditor, in proceedings against the indemnifier. This can only occur on a strictly limited basis. Ordinarily a judgment against the person being indemnified, in respect of a matter covered by the indemnity, cannot be tendered in evidence in an action between that person and the indemnifier.
His Honour recognised an exception arising when the indemnifier is estopped from denying the validity of the judgment. After reviewing and questioning a number of the authorities his Honour said (at 524):
It appears that this means that it may be implicit, in a contract of indemnity, that where the indemnifier conducts himself in such way that he represents that he will be content with whatever judgment is granted against the person being indemnified, he will be estopped from denying the correctness of the judgment and it may be used against him.
I have some doubt, with respect, as to whether this approach, on analysis, is strictly correct. I would have thought that in an appropriate case an estoppel to similar effect would arise, irrespective of whether there is to be a clause implied in a contract of indemnity.
Similar issues arose in Ann Street Mezzanine Pty Ltd (In Liq) v Beck [2009] FCA 333 where Finkelstein J had occasion to consider an application to strike out a cross‑claim because of alleged issue estoppel affecting a party with alleged privity of interest. In that case, the question was whether or not a finding of insolvency at a particular date could be challenged by a party who was a shareholder in the company held to have been insolvent at a later date in separate proceedings. In that case, his Honour said at [25]:
The principle that parties and their privies cannot call into question an issue of fact or law that has been resolved between them in litigation is referred to as estoppel by record or issue estoppel. In Blair & Perpetual Trustee Co Ltd v Curran Adams' Will (1939) 62 CLR 464 at 532 Dixon J explained that issue estoppel as to facts is confined to 'those ultimate facts which form the ingredients of the cause of action' and 'the actual ground upon which the existence of the right was negatived'. He went on to say that subsidiary or collateral findings are not covered by the estoppel. The question here is not whether the findings of insolvency are ultimate findings, for they plainly are. Rather, the question is who is bound by them.
And then later at [27] his Honour said:
The issue of privity is more complex. Ramsay v Pigram (1968) 118 CLR 271 involved a collision between a vehicle driven by a police officer and a second vehicle driven by a member of the public. The police officer sued the driver for negligence and succeeded. Later the driver sued the nominal defendant appointed to represent New South Wales. The nominal defendant pleaded issue estoppel as an answer to the action. The High Court held that there was no privity of interest between the police officer and the nominal defendant. Barwick CJ said (at 279) that there were three classes of privies - of blood, of title and of interest. He went on:
'The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy.'
Taylor J cited (at 287) the following passage from Taylor's Treatise On the Law Of Evidence (12th ed, 1931) with approval:
In all the instances of privity [in interest] … the privy has claimed, or been liable, under or through the original party …
His Honour then went on to discuss the rules and principles developed in the United States of America relating to privies in interest which recognise privity where there are close economic or financial connections but concluded that such an approach cannot be applied in Australia on the authority of Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (supra) the decision of Gummow J, and because of the decision of the Full Court in Effem Foods Pty Ltd v Trawl Industries of Australia (supra). In the first of those cases the question of privity in interest was examined by Gummow J at 413 ‑ 418 and, after examining a series of authorities, his Honour identified that, in terms of traditional doctrine, privity arose because of a mutual or successive relationship to the same right of property or even if the interest was mutual but not successive, before saying, at 414:
It is important for the instant case to appreciate that in these authorities, when finding the necessary privity in a successive or mutual relationship, the courts have looked to legal rather than economic indicia as the criterion of operation of the privity doctrine. This has been true also in Australia.

His Honour then went on to discuss and distinguish the applicable United States doctrine and authorities which recognise privity as arising because of economic associations before observing that this was not the law of Australia ‑ an approach expressly adopted and approved in the Full Court (1993) 43 FCR 510 at 521: Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In Liq).
For an example of where conflicting views were taken about whether the necessary successive or mutuality of interest existed so as to create a privity in interest there are the observations of Basten JA on the one hand and Campbell JA on the other, in Canon Australia Pty Ltd v Patton [2007] NSWCA 246; (2007) 244 ALR 759 where, at [8] Basten JA said:
Inconsistent judgments may result if separate proceedings were brought against the principal debtor and the guarantors. However, where the guarantors controlled the principal debtor company or where they had notice of the demand against the principal debtor, they may yet be estopped from denying the liability of the principal debtor, established by judgment in the other proceedings: see G Spencer Bower, AK Turner and KR Handley, The Doctrine Of Res Judicata, 3rd ed, Butterworths, London 1996, at 224 and see Pettman v Keble (1850) 137 ER 1067; Ben Chipping Co v An Bord Bainne [1986] 2 All ER 177 at 187 per Bingham J; Gracechurch Holdings Pty Ltd v Breeze (1992) 7 WAR 518 at 524 per Ipp J; State Bank of NSW v Alexander Stenhouse Ltd (1997) Aust Torts Rep 81‑423 per Giles CJ, Com Div and Interchase Corp Ltd (In Liq) v FAI General Insurance Co Ltd [2000] 2 QD 301; [1998] QCA 180 per Davies, McPherson JJA and Byrne J.
But with regard to which Campell JA said at [68]:
Since writing the above, I have had the opportunity to read the draft judgment of Basten JA. I would prefer not to make a decision about the correctness of the alternative ground upon which his Honour favours upholding the appeal. It is not a ground that arose in the course of argument of the case. As well, there is a line of authority that has held that, at least sometimes, a guarantor who has guaranteed the payment of what is actually owing by the principal will not be bound by a judgment or arbitration award obtained by the creditor against the principal: Re Kitchin; Ex Parte Young (1991) 17 Ch D 668; Attorney-General (NSW) v Begley (1910) 11 CRL 432; 17 ALR 380; [1910] HCA 69; Bruns v Coloctromic ('Vasso') [1979] 2 Lloyd's Rep 412. (It may be otherwise if the guarantee is of the amount of any judgment or award against the principal, Compania Sudamericana De Fletes SA v African Continental Bank Ltd ('Rosarino') [1973] 1 Lloyd's Rep 210: Sabemo Pty Ltd v de Groot (1991) 8 VCL 132 at 145 ff.) Further, consideration would need to be given to the significance, for the type of estoppel being invoked here, of the fact that the judgment in question against the company was in effect a default judgment. I would prefer not to embark upon these questions when another path to decide the case is open.
In the present case, in line with the authority referred to in Gracechurch Holdings Pty Ltd v Breeze (supra) the conventional rule is that the guarantor, if not a party to the original proceedings in which the creditor obtained a judgment against the principal debtor, will not be bound by that judgment unless he or she is a privy of the debtor. On this basis, the judgment in favour of Clambake against Tipperary for an indemnity in the fire claim will not be binding against Mr Anderson unless he is a privy of Tipperary in relation to that matter. There can be no doubt that Mr Anderson was very closely involved with Tipperary, was the controlling and directing mind of Tipperary, gave instructions on behalf of Tipperary (and Owston) in relation to the fire claim and himself gave evidence in both the rent action and on the fire claim. If the United States authorities were to be applicable he would, on those economic tests, be treated a as a privy of Tipperary. Yet he is not sued on the guarantee under or through the person of whom he is said to be a privy. His liability as guarantor may be ancillary but it is not identical, as the authorities to which Campbell JA referred in Canon Australia Pty Ltd (supra) demonstrate.
Yet what is one to make of the fact that Mr Anderson, for all practical purposes, was aware of the claims being advanced by Clambake against Tipperary in the counterclaim in the fire action for an indemnity under cl 4.01 and participated in the action without seeking to raise any point which may exclude or diminish any potential liability which he might personally have as Tipperary's guarantor. The point made by Ipp J in Gracechurch Holdings (supra), by Finkelstein J in Ann Street Mezzanine (supra) and by Gummow J in Trawl Industries is that if a person closely affiliated with the subject matter of an action and with notice of the claim stands by and takes no steps to advance or to defend his own personal interest, he will become bound as a matter of issue estoppel by the result determined between those other parties on an identical issue which affects him. There is also an alternative view that rather than treat such a result as constituting an issue estoppel, the jurisdiction of the court to prevent an abuse of process may be invoked to prevent a party litigating in one proceeding an issue determined in other proceedings between different parties to which he nevertheless had a sufficiently proximate interest. These formulations are found in the judgment of Gummow J in Trawl Industries v Effem Foods (supra) at 422 ‑ 423 where his Honour said:
If that be the case and there is no full case of action estoppel against Trawl then, in my view, the negligence claim (and the precise contraventions in the trade practices law not previously pleaded) could and should have been brought forward by Trawl in the Supreme Court: see Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 509; Chamberlain v Deputy Commissioner of Taxation (1991) 28 FCR 21 at 24. Counsel for Trawl sought to resist this conclusion on several but related grounds …
If a party to litigation chooses not to take a point it may properly said to have been irrevocably abandoned or 'waived': see Commonwealth v Verwayen (1990) 170 CLR 394 at 423 and 483. An element in the Anshun doctrine is that in such a case the party in question cannot improve his position by bringing separate actions, a point made by Brennan J in Anshun (at 612) …
In Anshun (at 603 ‑ 604) Gibbs CJ, Mason and Aickin JJ said that by 'conflicting' judgments they included judgments which were contradictory though not pronounced on the same cause of action, it being enough that they appeared to declare rights which were inconsistent in respect of the same transaction: cf Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 at 346, 354.
Addressing a similar series of submissions in Ann Street Mezzanine Pty Ltd (supra) Finkelstein J said at [33] ‑ [34]:
For example, if a person stands by and waits to see the outcome of a case in which he has a distinct interest without making himself a party, he is bound by the result and is not allowed to re-open the issue in another piece of litigation. This principle is derived from the speech of Lord Penzance in Wytcherley v Andrews (1871) LR 2 P & M 327, 328; cited with approval in Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95, 102.
More generally, it may be accepted that any attempt to re-litigate an issue may be an abuse. But there must be some 'special reason' that prevents a person raising an issue that has been decided by another court but by which he is not strictly bound: Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd v CE Heath & Co (Marine) Ltd [1982] 2 Lloyd's Rep 132, 138. Hence, in Bradford & Bingley Building Society v Seddon Hancock [1999] 1 WLR 1482, 1492 Auld LJ said:
The mere attempt to re-litigate does not necessarily give rise to an abuse of process. Some additional element is required, such as a collateral attack on a previous decision as in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, some dishonesty, or successive actions amounting into unjust harassment: Bradford at 1493.
In this present case there was simply no reason for Mr Anderson to attempt to resort to remedies under s 87 of the TPA in defence of the rent action and I am satisfied that the absence of any such defence by Mr Anderson in those proceedings cannot amount to any form of Anshun estoppel or other preclusion preventing him from having resort to such a defence or cross‑claim in the new amended action against him in the fire claim.
In the fire claim Tipperary could have raised the s 87 issues in defence to the counterclaim against it for an indemnity but did not do so and has been adjudged liable to indemnify Clambake. That results in a res judicata preventing Tipperary from raising that defence in the issues stood over for separate trial, namely the claim for damages for the alleged failure to insure.
Turning to the position of Mr Anderson, no claim of any kind was advanced against him in the fire claim nor was there ever any evidence to establish that he was put on notice by Clambake that the same, or a similar, claim against him as Tipperary's guarantor, would be advanced in the event that Tipperary was adjudged liable to indemnify Clambake for a judgment in Owston's favour. On the basis of the materials before me there was nothing to suggest to Mr Anderson that he was, or might be, in jeopardy of having his potential liability as a guarantor of the liabilities of Tipperary determined in such a way as to render him concurrently liable with Tipperary under the indemnity which Owston was seeking from Tipperary. That being so, I do not consider that there is any basis for finding that Mr Anderson stood by or neglected to advance this point in the previous proceedings. Nor, because the point was not raised in the fire action, does there appear to me to be any danger of inconsistent judgments being entered if the new proceedings continue, even if this were to lead to Tipperary's claim against Mr Anderson for liability under the guarantee to be dismissed because of s 87 of the TPA. Such a result would leave the present judgment to the effect that Tipperary is obliged to indemnify Clambake standing but the claim against the guarantor Mr Anderson being dismissed. Those would be different results but the judgments would not be contradictory because only in the Anderson claim had the s 87 defence been raised and upheld.
As to the submission by Clambake that Mr Anderson is a privy to the findings that Tipperary is obliged to indemnify Clambake for its liability to Owston because, although not a party to the fire action, he was a party to the rent action and the two actions were consolidated by my order of 24 June 2004, I am not disposed to conclude that he is for that reason to be treated as a party to the fire action. In my reasons for decision when consolidating those actions ([2004] WASC 104) I observed expressly at [7] that the two sets of proceedings should retain their separate identities with subsets of pleadings in each but that a joint trial should take place. I expressly observed in [8] that:
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.
Those separate and distinct characters of the two actions were maintained at all times during the trial of the two claims and in my reasons for decision and in the orders for judgment. I therefore reject the submission that the mere fact of an order for consolidation means that Mr Anderson became a party to the fire action and, so as a matter of res judicata, became bound by all the findings made in the fire action. However, even if that were otherwise, there has, as already explained, been no finding in the fire action to date concerning and s 87 claims nor any relief in favour of either Mr Anderson or Tipperary against Clambake. The issues raised by these new pleas are issues between different parties and raise causes of action different to any of those resulting in judgments or declarations of liability in the fire claim judgments of 20 March 2009.
Accordingly, I conclude that in relation to the new claims against him, Mr Anderson is not a privy in law to the interests of Tipperary and is not bound by my judgment declaring Tipperary liable to indemnify Clambake. Similarly, I conclude that no Anshun estoppel arises nor is there any reason to conclude that there is an abuse of process by permitting Mr Anderson to defend the claims brought by Clambake as guarantor of Tipperary's obligation to insure or as guarantor of Tipperary's indemnity.
That leaves the question of whether or not there is a res judicata, issue estoppel or unanswerable case on the merits which would justify Mr Anderson and Tipperary succeeding in their applications to have one or both of Clambake's claims, for damages for the alleged failure to insure, and for an indemnity against Mr Anderson as guarantor, dismissed or struck out. As already described, the basis for these contentions is that the finding of misleading and deceptive conduct made against Clambake and in favour of Owston should necessitate, as a matter of law or fact, a similar finding in the proceedings between Clambake and Tipperary and Anderson on the failure to insure claim and between Clambake and Mr Anderson on the indemnity claim. The first thing to observe is that there can be no res judicata or cause of action estoppel because the previous judgment involved findings between Clambake and Owston. For the same reasons which I have given in relation to his relationship with Tipperary, I consider that Mr Anderson cannot be regarded as having a privity of interest with Owston in these proceedings, notwithstanding his close personal connection and previous control of that company.
The next issue becomes whether or not, notwithstanding the absence of a res judicata, there can be an issue estoppel but again the parties are not the same and there is no reason to conclude that Mr Anderson should have sought to become involved earlier in the fire claim when no relief was being sought against him personally. On that basis, I do not see any grounds for staying or striking out Clambake's remaining claims against Tipperary or Mr Anderson.
This leaves the claim for summary judgment brought by Tipperary and Mr Anderson against Clambake resting on the findings of fact made about the existence of the misleading conduct which led to the actions of Owston in placing the furniture in the store room and leaving it there until the fire.
Proof that such misleading and deceptive conduct also caused Mr Anderson to execute the guarantee would be needed for him to succeed with his s 87 defence. No such finding has been made in the proceedings so far because no such finding was sought. I have already observed that the evidence as it stands would in all probability lead to such a finding being made in favour of Mr Anderson on the new and outstanding claims but this is not the occasion to make such findings unless they would lead to the success of the applications for summary judgment. A helpful explanation of the different significance and requisites for a successful summary judgment application are to be found in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (In Liq) [2008] FCA 1920; (2008) 252 ALR 41, [19] ‑ [20]. One particular factor for consideration is whether or not, as a matter of law, there are any facts which need to be found such that a trial is required, that is, whether there is any real or genuine dispute as to any material fact (see per Finkelstein J in Imobilari Pty Ltd (supra) [6].
Counsel for Tipperary and Mr Anderson submit that while s 87 contains a wide power for the court to make remedial orders in appropriate cases, there is a clear entitlement to such relief upon proof that the claimant has suffered or is likely to suffer loss or damage by conduct of the respondent engaged in and in contravention of s 52, even if the form and extent of the relief is at the discretion of the court. Counsel for Clambake has submitted that even if all the facts relating to the s 87 claims or defences are to be taken as the facts already found in the action or further facts based on the evidence at trial consistent with the findings already made (an approach which counsel on all sides appeared to support) that should not lead to a final disposition of these claims because of defences which Clambake wished to consider and advance, including a limitation defence.
Under s 87, in contrast to s 82, the claimant's cause of action accrues from the time when the applicant has suffered or is likely to suffer loss or damage. Clambake submits that this will usually be the date on which the misleading or deceptive conduct complained of occurred but counsel for Tipperary and Mr Anderson, advancing an analogy with the common law rules relating to the date of accrual of causes of action for indemnities, submitted that in this case the cause of action under s 87 did not accrue until Clambake was found liable to pay damages to Owston and Tipperary was also found liable to indemnify Clambake for that liability. On that approach, the proposed claims under s 87 would be within time. Because no limitation defence has yet been pleaded there were no further submissions directed to this point but the potential for a successful limitation defence or other defences not yet disclosed leads me to conclude that this is not an appropriate occasion for the summary dismissal of Clambake's claims on the merits. If there is one lesson to be learned from the many difficulties in this litigation it is that new and previously unrecognised complications can easily arise.
For reasons which I have given, I am satisfied that there is no res judicata or issue estoppel which prevents Mr Anderson raising the s 87 defences to the claims for damages for the alleged failure to insure or for Mr Anderson to rely on these claims in relation to his defence of the new cross‑claim for indemnity. I have also concluded that there is no res judicata or issue estoppel which should lead to a finding being made of misleading or deceptive conduct against Clambake in favour of Mr Anderson although, as the facts stand, such a finding could on the merits be made but subject to other defences on which Clambake has foreshadowed it intends to rely. I consider, therefore, that I cannot uphold the claims for summary judgment by Tipperary and by Mr Anderson and that all these remaining claims should await final determination upon their merits.
This is not to suggest that the final determination of these claims can be at large or that any of the parties should be at liberty without restriction to adduce or elicit further evidence. What further evidence, if any, may be permitted in relation to these outstanding claims will depend on the terms of any further pleadings, whether defences or replies filed by Clambake, Tipperary or Mr Anderson. Even then, the admissibility of further evidence will need to be considered in the light of findings made in the action to date which, for any reason yet to be examined, might be considered binding against, or incontrovertible by, one or more of those parties. A determination of exactly how and upon what evidence these issues may be further contested must await a determination at a directions hearing once the pleadings have closed and I will entertain an application for orders or directions in that regard at short notice.

Appointments of receivers to Owston

The circumstances leading to the appointment of receivers of Owston and the details of their appointment are more fully set out in my separate reasons dealing with the dismissal of the applications by Land Capital, Clambake and Mr Cohen for injunctions to restrain the newly appointed solicitors and counsel for Owston from acting further in these causes. Consequently, only a brief reference to these matters need be made in these reasons.

Two sets of receivers have been appointed, one by a secured creditor, Angas Securities Ltd and the other by another secured creditor, Balanced Securities Pty Ltd. The appointments relate to different assets of Owston. The receivers appointed by Angas Securities Ltd are appointed in respect of much of Owston's real property and other assets but not in respect of Owston's interest in the judgment entered in these proceedings against Clambake nor otherwise in relation to any rights or rights of appeal in these proceedings. By contrast, the receivers appointed by Balanced Securities Pty Ltd have been appointed only in respect of Owston's interest in the present judgment which it has obtained against Clambake and in respect of all associated interests which Owston has or may have in these proceedings including interests arising from any appeal or appeals.
Counsel now appearing for Owston announced that he is acting on instructions of the company provided by the receivers appointed by Balanced Securities Pty Ltd and, further, that for the present, at least, the company under the control of those receivers desires only to enforce so much of the judgment against Clambake as can be recovered from Clambake's insurer reserving, of course, all other rights of the company to enforce the judgment to its fullest extent, or any further extent, beyond the monies available from Clambake's insurer. Owston and Clambake are agreed, indeed it emerged in evidence at the trial, that the extent of the indemnity available from Clambake's insurer is $10 million and, accordingly, this would not satisfy the judgment in favour of Owston in full.
Counsel for Clambake has assured the court that the insurance indemnity to this extent is available in addition to the net assets of Clambake which have been disclosed in its balance sheets and other financial papers which were provided in March 2009 when the first application for an order suspending execution of that judgment was made and determined. Counsel for Clambake also submits that the amount of this insurance indemnity would be available even if Clambake were to become insolvent, or to go into administration or liquidation and that in either of those events, the available indemnity would not form any part of the property of Clambake divisible among other creditors.
These developments, which have all occurred since the delivery of the reasons for decision on 9 March 2009 and the subsequent entry of judgment and orders on 20 March 2009 are relied on by both Clambake and by Owston but for different reasons.
Clambake submits that these are material changes in circumstances which provide further special reasons to justify an extension of the order suspending the execution of the judgment against it in favour of Owston. It submits that the events disclose that:
(a)in addition to its net assets there is the availability of an insurance indemnity of $10 million to satisfy the present judgment in favour of Owston and that this recourse will not be jeopardised by any change in the immediate financial circumstances of Clambake.
(b)if Clambake is required to satisfy Owston's judgment in whole or in part immediately, then any payment made to Owston will become subject to the security held by Balanced Securities Pty Ltd so that if, in the event of a successful appeal or for any other reason, Owston were to be ordered or became liable to repay the proceeds of the judgment to Clambake, the obligation to repay would be no more than an unsecured claim by Clambake which would be deferred to the rights of that secured creditor and which, if Owston became insolvent, would only rank equally with all other unsecured creditors and could therefore be at the risk of reduction by apportionment.
Despite the matter being explored superficially in the submissions without any final determination, the appearances are that no order or terms imposed on the holding of such moneys by Owston, if the judgment were to be enforced, would quarantine the monies paid in part or total satisfaction of the judgment from the secured interest of the creditor without that creditor expressly agreeing to such terms or being made a party to these proceedings and becoming bound by any or all orders of the court which would have the effect of suspending the effect of that security or excluding the judgment proceeds in some way or other from it. There was no acknowledgment and I do not make any present determination of whether or not such an order could possibly be made or, if it could, whether such terms should be imposed. It is possible that such issues may need to be addressed later and nothing said now on the issue can or should inhibit a full and proper determination of those questions if and when they arise for decision.
Owston submits that the appointment of these receivers demonstrates even more starkly the clear distinction in identity between Mr Anderson and its corporate identity. At the trial Owston and Tipperary were represented by the same solicitors and counsel and it was freely acknowledged that Mr Anderson effectively controlled both corporations. So it was acknowledged, for example that if a situation might arise where Tipperary or Owston needed to elect whether or not to take a judgment for damages which would be available to one but not to both, Mr Anderson would take that decision on behalf of both corporations. The present submission, however, is that the situation now exists where the decision making process , and the financial interests of Owston are different to those of Tipperary or Mr Anderson.
So it was submitted on both sides that these considerations are material to the determination of the new application by Clambake for an order extending the present order suspending enforcement of the judgment against Clambake in favour of Owston. It is to that application that I must now turn.

Application for extension of order suspending execution of judgment for damages against Clambake in favour of Owston

The principal point relied upon by counsel for Owston in opposition to any extension of the order suspending enforcement of the judgment in the fire claim in its favour against Clambake is the proposition that nothing in the new claims being advanced by Clambake against Tipperary and Mr Anderson, nor anything in the unresolved claims for damages by Clambake and Tipperary and Mr Anderson for the alleged failure to insure can possibly lead to a disturbance or reduction of the existing judgment for $20,102,111.43 which has been entered in favour of Owston. That being the case, so Owston submits, it should now have unrestricted right to its judgment and be entitled to enforce it against Clambake. The only possible grounds for an extension of the stay of execution against Clambake in favour of Owston would be, so the latter contends, determinable upon the grounds relating to a stay pending an appeal. This application for an extension of the order suspending enforcement of the judgment is advanced not only in relation to the issues which have arisen and which are still outstanding but also because of the pendency of appeals by Clambake.
Consequently, Owston submits that the test for special circumstances which must be found before an order suspending the enforcement of all or any part of a judgment can be made are those provided for by s 15(3) of the Civil Judgments Enforcement Act 2004 (WA) and I accept that submission. These principles have been canvassed recently by Templeman J in New Resource Holdings Pty Ltd v Lunt (No 3) [2008] WASC 221 where reference is made to Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 and Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 and State Bank of Victoria v Parry [1989] WAR 240.
A consideration of those authorities, and the submissions of counsel on this application, leads to the examination of the decision in Burnet v Francis Industries PLC [1987] 1 WLR 802 where attention was given to whether special circumstances justifying the stay of a grant of execution could arise in relation to a judgment in favour of A against B where B had some corresponding or correlative claim against C which, if satisfied, may, in whole or in part, discharge the judgment against A. It is enough to say that the principles in Burnet v Francis Industries Pty Ltd have been recognised in this jurisdiction by Malcolm CJ in State Bank of Victoria v Parry (supra), by Templeman J in New Resource Holdings Pty Ltd v Lunt (supra) and by the Full Court in Greenco Pty Ltd v Wilden Pty Ltd (Unreported, 10 October 1997, Library No 970517) even if only sparingly applied. Templeman J examined the matters pertinent to the application of the rule in Burnet v Francis Industries PLC in New Resource Holdings Pty Ltd (supra) at [40] ‑ [41] and I gratefully adopt and agree with his Honour's formulation of those criteria.
In the present case there is, of course, not an identity between the parties to the judgment (Clambake and Owston) and the parties who are pursuing the new unresolved claims (Clambake, Tipperary and Mr Anderson) but I am led to understand that Clambake intends to appeal against the finding that it is liable in damages to Owston, and that Tipperary intends to appeal against the finding that it is liable to indemnify Clambake for that liability pursuant to cl 4.01 of the lease. Accordingly, although the identity between the parties is not exact, they are related and so, in my opinion, are the claims leading to the judgments. These liabilities are in effect quite reciprocal.
Clearly, it is the judgment in favour of Owston against Clambake which gives rise to the liability by Tipperary to indemnify Clambake and which is relied upon for the unresolved claim against Mr Anderson that he too should indemnify Clambake. If Clambake were to succeed in its appeal from the judgment in favour of Owston there would be no basis for Tipperary or Mr Anderson to indemnify it for such an obligation. If that judgment stands and Clambake succeeds in its claim for indemnity against Mr Anderson then both he and Tipperary (as already adjudged) will be obliged to indemnify Clambake for its liability to Owston.
Mr Anderson's rights as against Owston, if any, have not been established and there is no evidence upon which I could make any definite finding that he is entitled to participate to any degree in the distribution of the proceeds of the judgment which Owston has obtained against Clambake yet, to say the least, the possibility of that occurring has not been excluded. Satisfaction by Clambake of its liability to Owston under the existing judgment would, on the evidence made available to me, consume all or most of the assets of Clambake and if that were to occur it is likely that irreversible damage would be done to Clambake's interests even if it were ultimately to succeed in the appeal or appeals.
At present, for reasons already explained Owston is only pressing for execution to the extent of $10 million, representing the insurance indemnity available, but execution even to that extent may lead to problems with the secured creditors obtaining a prior charge over those proceedings, leading to doubts over whether all those moneys could be recovered in the event of a successful appeal by Clambake if Owston's financial position were to deteriorate further. There appears to be no present risk that the $10 million insurance indemnity available to Clambake for partial satisfaction of its liability to Owston will disappear or be diluted, and the orders already made restraining Clambake from disposing of or further encumbering any of its assets or making payments otherwise than in the ordinary course of business, with liberty to Owston to apply, are sufficient, in my view, to protect the existing assets of Clambake from dissipation or loss to the judgment creditor.
Having regard to these circumstances, and the potential for the overall financial obligations of the interrelated parties to this litigation changing significantly, depending upon the outcome of the issues remaining to be determined and, of course, of pending appeals, I consider that the situation is sufficiently special to justify, indeed warrant, a continuation of the order suspending execution of the judgment in favour of Owston until the resolution of the outstanding claims which must be determined at first instance, or until further order subject to liberty to apply. Subject to these terms, upon which I will hear counsel further if so desired, there will be an order extending the order suspending execution of the judgment against Clambake in favour of Owston.

Case management

In the light of these determinations it is apparent that the remaining issues must await determination upon their merits at a trial to be conducted, hopefully, in the near future. As raised with counsel, I consider that there are case management considerations which might well be invoked to achieve an efficient and speedy resolution of most of these major issues. A successful invocation of the s 87 defences or cross‑claims by Mr Anderson would mean that Clambake's claim for damages against him for the alleged failure to insure would be dismissed without the need to take all the evidence alluded to in [495] ‑ [497] and [502] ‑ [509] of the reasons of 9 March 2009. Alternatively, if the s 87 defences and cross‑claims failed, there seems to be a significant possibility that the result would be that Mr Anderson would be held liable to indemnify Clambake for Tipperary's liabilities, including the latter's liability to indemnify Clambake for its liability towards Owston. As that is by far the greatest pecuniary liability in this action ($20,102,111.43) there is much to be said for proceeding in a way in which the greatest pecuniary contest in the litigation could reach an early conclusion even if failure by Mr Anderson in his s 87 claims would necessitate a further trial to determine the existence and extent of the alleged liability for failure to insure. As all the parties have indicated an intention to appeal, in some way or another, from some or all of the orders made in the judgment of 20 March 2009, I consider that it is in the interests of all concerned to proceed to the earliest reasonable resolutions of these outstanding major issues so that, if any of the parties should choose to do so, an appeal or appeals from the determinations of those issues can also be dealt with at or about the same time as existing appeals. This seems to me to offer the most efficient, expeditious and economical way of proceeding and I propose, at the next directions hearings, to make orders designed to facilitate such a result after hearing further from counsel in that regard.