Commonwealth Bank of Australia v The Law Debenture Trust Corporation Plc [No 3]

[2017] WASC 382

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   COMMONWEALTH BANK OF AUSTRALIA -v- THE LAW DEBENTURE TRUST CORPORATION PLC [No 3] [2017] WASC 382

CORAM:   PRITCHARD J

HEARD:   31 MARCH 2017

DELIVERED          :   1 FEBRUARY 2018

FILE NO/S:   CIV 2061 of 1996

BETWEEN:   COMMONWEALTH BANK OF AUSTRALIA

First Plaintiff

NATIONAL AUSTRALIA BANK LTD
Second Plaintiff

SOCIETE GENERALE AUSTRALIA LTD
Third Plaintiff

STANDARD CHARTERED BANK AUSTRALIA
Fourth Plaintiff

WESTPAC BANKING CORPORATION
Fifth Plaintiff

HONGKONGBANK OF AUSTRALIA LTD
Sixth Plaintiff

BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA
BANK FUR GEMEINWIRTSCHAFT AG
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
CREDITANSTALT-BANKVEREIN
CREDIT LYONNAIS
DRESDNER BANK AG
BANQUE INDOSUEZ
Seventh Plaintiffs

LLOYDS BANK PLC
CAISSE NATIONALE DE CREDIT AGRICOLE
GENTRA LTD (FORMERLY ROYAL TRUST BANK)
KREDIETBANK NV
GULF BANK KSC
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK
Eighth Plaintiffs

SKOPBANK
Ninth Plaintiff

AND

THE LAW DEBENTURE TRUST CORPORATION PLC
First Defendant

INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant

BELL GROUP NV (IN LIQ)
Third Defendant

COMMONWEALTH OF AUSTRALIA
Fourth Defendant

(BY ORIGINAL ACTION)

THE LAW DEBENTURE TRUST CORPORATION PLC
First-named Plaintiff by Counterclaim

INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second-named Plaintiff by Counterclaim

AND

AUSTRALIAN CONSOLIDATED INVESTMENTS LTD
GODINE DEVELOPMENTS PTY LTD
BELL RESOURCES DEVELOPMENTS PTY LTD
First Defendants by Counterclaim

LLOYDS BANK PLC as representative of Lloyds Bank PLC, Banco Espirito Santo E Comercial De Lisboa, Bank Fur Gemeinwirtschaft AG, The Governor and Company of the Bank of Scotland, Caisse Nationale De Credit Agricole, Creditanstalt-Bankverein, Credit Lyonnais, Dresdner Bank AG, Kredietbank NV, Skopbank, DG Bank KSC, Gentra Ltd (formerly Royal Trust Bank) and Banque Indosuez
Second Defendant by Counterclaim

WA GLENDINNING & ASSOCIATES PTY LTD
WU INVESTMENTS PTY LTD
EXPECTATION PTY LTD
Third Defendants by Counterclaim

COMMONWEALTH OF AUSTRALIA as representative of Commonwealth of Australia, Western Interstate Pty Ltd (Provisional Liquidator Appointed), Bell Publishing Group Pty Ltd (In Liq), TBGL Enterprises Ltd (In Liq), Belcap Enterprises Pty Ltd (In Liq), WAON Investments Pty Ltd (In Liq), Wigmores Tractors Pty Ltd (In Liq), Wanstead Pty Ltd (In Liq), Bell Bros Pty Ltd (In Liq), W&J Investments Ltd (In Liq), Maradolf Ltd (In Liq), West Australian Newspapers Ltd, Wesavel Pty Ltd (formerly Western International Travel Pty Ltd), R S Linfoot Investments Pty Ltd (t/a Linfoot Cleaning Service), Rendezvous Hotels Management Pty Ltd (t/a Radisson Observation City Hotel), Corrs Chambers Westgarth, Bennett & Co, Robinson Cox, Ernst & Young Registry Services Pty Ltd (formerly Registry Managers (Australia) Pty Ltd), Honeywell Ltd, Opera Foundation Australia, Telstra, Bell Group NV (In Liq), J N Taylor Holdings Ltd (In Liq) and Bond Corporation Pty Ltd
Fourth Defendant by Counterclaim

WESTPAC BANKING CORPORATION as representatvie of Westpac Banking Corporation, Coopers & Lybrand, Parker & Parker and Mallesons Stephen Jacques
Fifth Defendant by Counterclaim

(BY COUNTERCLAIM)
 

Catchwords:

Procedure - Dismissal of action - Leave to discontinue action - Where issues substantially overlap with other proceedings - Where plaintiffs have not brought application to discontinue or dismiss - Where parties may wish to seek release from undertakings given in the action after dismissal or discontinuance

Procedure - Abuse of process - Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(d) - Inherent jurisdiction - Where no relief sought - Where no intention to prosecute action - Where application to release undertakings likely to be made - Where no substantial prejudice from action remaining on foot for the time being

Summary enforcement of settlement agreement - Where substantial questions to be determined - Where assessment of surrounding circumstances required - Where not all parties to settlement agreement are parties to the action

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category:    B

Representation:

Original Action

Counsel:

First Plaintiff                  :     Ms K Lendich

Second Plaintiff             :     Ms K Lendich

Third Plaintiff                :     Ms K Lendich

Fourth Plaintiff              :     Ms K Lendich

Fifth Plaintiff                 :     Ms K Lendich

Sixth Plaintiff                 :     Ms K Lendich

Seventh Plaintiffs           :     Ms K Lendich

Eighth Plaintiffs             :     Ms K Lendich

Ninth Plaintiff                :     No appearance

First Defendant              :     No appearance

Second Defendant         :     Mr S Finch SC & Mr I Ahmed

Third Defendant            :     Mr A D'Arcy

Fourth Defendant           :     No appearance

Solicitors:

First Plaintiff                  :     Herbert Smith Freehills

Second Plaintiff             :     Herbert Smith Freehills

Third Plaintiff                :     Herbert Smith Freehills

Fourth Plaintiff              :     Herbert Smith Freehills

Fifth Plaintiff                 :     Herbert Smith Freehills

Sixth Plaintiff                 :     Herbert Smith Freehills

Seventh Plaintiffs           :     Herbert Smith Freehills

Eighth Plaintiffs             :     Herbert Smith Freehills

Ninth Plaintiff                :     No appearance

First Defendant              :     No appearance

Second Defendant         :     State Solicitor for Western Australia

Third Defendant            :     Lipman Karas

Fourth Defendant           :     No appearance

Counterclaim

Counsel:

First-named Plaintiff by Counterclaim       :        No appearance

Second-named Plaintiff by Counterclaim   :        Mr S Finch SC & Mr I Ahmed

First Defendants by Counterclaim    :        No appearance

Second Defendant by Counterclaim :        Ms K Lendich

Third Defendants by Counterclaim  :        No appearance

Fourth Defendant by Counterclaim  :        No appearance

Fifth Defendant by Counterclaim :    Ms K Lendich

Bell Group NV (In Liq)   :     Mr A D'Arcy (By Leave)

Solicitors:

First-named Plaintiff by Counterclaim       :        No appearance

Second-named Plaintiff by Counterclaim   :        State Solicitor for Western Australia

First Defendants by Counterclaim    :        No appearance

Second Defendant by Counterclaim :        Herbert Smith Freehills

Third Defendants by Counterclaim  :        No appearance

Fourth Defendant by Counterclaim  :        No appearance

Fifth Defendant by Counterclaim :    Herbert Smith Freehills

Bell Group NV (In Liq)   :     Lipman Karas

Cases referred to in judgment:

Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256

Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC [No 2] [2017] WASC 61

Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC [No 2] [2017] WASC 61 (S)

Grovit v Doctor [1997] 1 WLR 640

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75

Michael Wilson and Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427

PNJ v The Queen [2009] HCA 6; (2009) 252 ALR 612

QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186

Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251

Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93

Thomas v Cummins [2009] WASC 228

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

Williams v Coral Bay Amalgamated Holdings Pty Ltd [2013] WASC 269

1. PRITCHARD J:  These reasons deal with an application (Application) made by the Third Defendant in the action (BGNV) by Chamber Summons dated 17 March 2017 for orders in the alternative, namely:

   1.Pursuant to the inherent jurisdiction of the Court, the original action be dismissed with no order as to costs; and

   2.…

   3.In the alternative to paragraph 1, the plaintiffs by original action and the first, sixth, seventh and eighth defendants by original action sign and file a consent order in the terms of Annexure 'A' [the terms of which were to grant the plaintiffs 'leave to discontinue the original action, and that the original action be and herby is, discontinued'].

2. The Application was opposed by the Second Defendant (ICWA).

3. For the reasons which follow, the Application will be dismissed.

Background to the Application

1. The background to the Application is set out in reasons for decision delivered in 2017 on a related application[1] and in reasons for decision in respect of another related application, which are also being published today.[2]  It is not necessary to repeat that background here.  The same abbreviations will be used here.

   [1] Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC [No 2] [2017] WASC 61.

   [2] Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC [No 2] [2017] WASC 61 (S).

2. In these proceedings, the plaintiffs pursued an action, which was defended, and the defendants also pursued a counterclaim.  The counterclaim was permanently stayed for want of jurisdiction, pursuant to an order I made on 16 March 2017.  As for the original action, there was a considerable overlap between the issues raised on the pleadings and the issues pleaded in CIV 1464 of 2000 (Bell proceedings).  In so far as those issues were concerned, they were resolved by a Deed of Settlement dated 7 September 2013 (Settlement Deed) entered into by the parties to the Bell proceedings.  There is also some overlap between other issues raised on the pleadings in the action, and issues pleaded in CIV 2666 of 2016.  The plaintiffs in this action are not parties in CIV 2666 of 2016 and do not seek to ventilate the issues in this action which have any remaining currency.  Those issues will, in all likelihood, be resolved in the context of CIV 2666 of 2016. 

3. The position of the plaintiffs in this action is that they want the action to be brought to an end.  However, for reasons to which I will shortly refer they have not brought an application seeking leave to discontinue the action, or otherwise to dismiss the action.  There have been attempts by the parties to agree to orders by consent, which, if made, would see the plaintiffs granted leave to discontinue.  However, no unanimity exists between the parties in respect of the terms of such an order.  The point of dispute concerns whether any leave to discontinue should be granted without prejudice to any application to discharge undertakings given to the Court in this action.   

The Undertakings

1. In October 2004, the parties then named as the Second to Fifth Defendants to this action, namely TBGL, BGF and their then liquidators, Mr Totterdell and Mr Woodings, gave undertakings to the Court that they would not attempt to amend certain trust deeds to which they were parties (undertakings).  It is unnecessary to set out the terms of those undertakings in full for present purposes.  Paragraph 1.1 illustrates the essence of them:

   Each of the second, third, fourth and fifth defendants undertake to this Honourable Court that they:

   1.1will not enter into or execute the TBGL Second Supplemental Deed and the BGF Second Supplemental Deed (as those terms are defined in the fifth statement of claim in CIV 2061 of 1996) or any other instrument which has the purpose or effect of amending the provisions of the TBGL Subordinated Bonds Trust Deed, the Conditions of the TBGL Subordinated Bonds, the BGF Subordinated Bonds Trust Deed and/or the Conditions of the BGF Subordinated Bonds (as those terms are defined in the fifth statement of claim in CIV 2061 of 1996) (together and separately the 'Deed') which concern:

   1.1.1the subordination of obligations in respect of the bonds, conversion bonds and/or guarantee which are the subject of the Deed;

   1.1.2the receipt and payment of moneys by the Trustee Bondholders and/or Issuer (as those terms are defined respectively in the Deed);

   1.1.3the substitution of the Issuer (as defined in the Deed) or the appointment of a new trustee.

2. The undertakings were subject to a grant of liberty to apply to discharge or vary them (liberty to apply), which was in the following terms:

   2.1There be liberty to apply to be released or to vary the undertakings if any amendment sought to be made to the Deed does not in any way adversely affect the rights, interests or position of Senior Creditors of The Bell Group Ltd or Bell Group Finance Pty Ltd.

3. The first defendant to this action also gave an undertaking to the Court in similar, although not identical terms, and is subject to a similarly expressed, but not identical, grant of liberty to apply to discharge or vary the undertakings. 

4. Following the provision of the undertakings, the Court made orders that the action as against each of the second to fifth defendants be discontinued.  The first defendant remains a party to the action.

5. The undertakings are relevant to the parties' positions on whether the action should now be dismissed, or discontinued, for the following reason.  It is apparent that the parties anticipate that at some future stage, the persons who gave the undertakings may seek to have those undertakings discharged.  There is no doubt that the discharge of the undertakings could be sought pursuant to the liberty to apply contained within the undertakings.  However, ICWA has frankly acknowledged that it wants the discharge of the undertakings to be pursued on a wider basis than the liberty to apply contemplates.  There is no dispute between the parties to this action that it is open to the parties who gave the undertakings to make an application, within this action, to discharge the undertakings, and that that course is open for so long as the action remains on foot.

6. There is also no dispute between the parties that if the action is dismissed or discontinued, then that would not prevent the parties who gave the undertakings from making an application to the Court to discharge the undertakings in the exercise of the liberty to apply.  There is, on the other hand, a very clear dispute about whether an application to discharge the undertakings, which fell outside the terms of the liberty to apply, could be made to the Court if the present action were dismissed or discontinued without an express preservation of that possibility.  ICWA thinks it could.  BGNV, however, is of the view that if the action is dismissed or discontinued, then the Court will be functus officio in relation to the issues raised in and by the action, and thus that the Court would be unable to discharge the undertakings in those circumstances if the discharge fell outside the scope of the liberty to apply.

7. BGNV acknowledged the possibility that it would advance that argument if the action were dismissed or discontinued, and an application were made to discharge the undertaking in circumstances outside those contemplated by the liberty to apply.[3]  The Application by BGNV to dismiss, or discontinue, the action is thus clearly designed to preclude any application to discharge the undertaking other than pursuant to the liberty to apply.

   [3] See, for example, BGNV's submissions in support of its application, dated 17 March 2017 [27].

The basis for the Application

1. There are two planks to the Application.  First, BGNV says that the action should be dismissed, pursuant to the inherent jurisdiction of the Court, because for the action to remain on foot, in all of the circumstances, constitutes an abuse of process.  BGNV says that that conclusion follows from the fact that the plaintiffs no longer wish to proceed with the action, and that the plaintiffs' causes of action against the defendants have been resolved, pursuant to the Settlement Deed.  BGNV submitted that it is an abuse of process for the action to remain on foot in those circumstances.

2. In so far as BGNV seeks the alternative relief that the parties to the action be required to consent to an order granting the plaintiffs leave to discontinue, BGNV says that an order to that effect is required to ensure that the parties perform their contractual obligations pursuant to the Settlement Deed.  That alternative relief thus equates to an order for specific performance of the Settlement Deed.

3. I turn, first, to consider whether it is an abuse of process for the action to remain on foot in all of the circumstances.

Whether the action constitutes an abuse of process

1. The Court has power under the Rules of the Supreme Court 1971 (WA) (RSC),[4] and in its inherent power,[5] to prevent the misuse of its procedures in a way which, although not inconsistent with a literal application of the other procedural rules of the Court, would nevertheless be manifestly unfair to a party to litigation, or which would bring the administration of justice into disrepute.[6]  The underlying policy is to prevent the waste of judicial resources and to maintain confidence in, and respect for, the authority of the courts.[7] 

   [4] Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(d).

   [5] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [4] (Buss JA) and the cases there cited.

   [6] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 256, 280, 286 - 287; PNJ v The Queen [2009] HCA 6; (2009) 252 ALR 612 [3]; Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 [28]; QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186 [41] (McLure P).

   [7] QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186 [114] (Newnes JA).

2. The circumstances in which an abuse of process may arise are extremely varied and the courts have refrained from attempting any exhaustive categorisation of those circumstances.[8] 

   [8] Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 [7]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [89] (Gummow A‑CJ, Hayne, Crennan & Bell JJ); Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 74 ‑ 75 (Gaudron J); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [5] (Buss JA), [119] (Murphy JA, Chaney J agreeing).

3. I am not persuaded that it would constitute an abuse of the process of the Court for the action to remain on foot for the time being, while there exists the likelihood that an application will be made to discharge the undertakings other than pursuant to the liberty to apply.  I have reached that view for the following reasons.

4. First, counsel for BGNV relied on the decision of the House of Lords in Grovit v Doctor[9] in support of his submission that it is an abuse of process for this action to remain on foot when the parties to it do not seek any relief in the action, and have no intention (or ability, having regard to the effect of the Settlement Deed) to prosecute the action.  In my view, Grovit does not support the conclusion that for this action to remain on foot would constitute an abuse of process. 

   [9] Grovit v Doctor [1997] 1 WLR 640, 647 - 648 (Lord Woolf, with whom Lord Goff, Lord Nicholls, Lord Steyn & Lord Clyde agreed).

5. In Grovit, a libel action was struck out for want of prosecution after the plaintiff failed to prosecute the action for over two years.  The judge at first instance had found that the plaintiff had no interest in actively pursuing the litigation.  The Court of Appeal dismissed the plaintiff's appeal from the decision of the judge at first instance.  In his judgment, Evans LJ found that the evidence suggested that the plaintiff had 'intended to maintain a state of anxiety on the part of the defendants'.  The plaintiff appealed to the House of Lords.  Lord Woolf (with whom the other Law Lords agreed) observed:

   I am satisfied that both the deputy judge and the Court of Appeal were entitled to come to the conclusion which they did as to the reason for the appellant's inactivity in the libel action for a period of over two years.  This conduct on the part of the appellant constituted an abuse of process.  The courts exist to enable parties to have their disputes resolved.  To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process.  Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. … In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings when there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings. (emphasis added)

1. Clearly, the decision in Grovit is not factually similar to the present action.  It cannot be said that this action was commenced by the plaintiffs without any intention of bringing it to a conclusion.  More importantly, it cannot be said, at this point in time, that there is no further issue to be resolved in the action.  For so long as there exists the likelihood that some or all of the parties who gave the undertakings to the Court in this action may apply to discharge them, it cannot be said that all of the issues in the action have been resolved. 

2. Secondly, for present purposes, it is neither necessary nor appropriate to determine if BGNV is correct in its view that, if the action were to be dismissed, the Court would be functus officio, and without jurisdiction to consider any application to discharge the undertakings other than pursuant to the liberty to apply.  However, if BGNV is correct in that view, then it is difficult to see how it could be an abuse of process for the action to remain on foot for the time being, so that the parties who gave the undertakings are not deprived of the opportunity they currently have to make an application, in the course of the action, to discharge the undertakings. 

3. In those circumstances, I am not persuaded that the administration of justice would be brought into disrepute if the action remains on foot for the time being, and until such time as it becomes clear whether an application to discharge the undertakings will be made.   

4. Thirdly, the conclusion I have reached is premised on the assumption that if the discharge of the undertakings is pursued, that will occur in the context of resolving CIV 2666 of 2016 within the foreseeable future.  This is not, therefore, a case in which there exists merely a theoretical possibility that at some (possibly distant) future stage, a party who gave an undertaking may seek to discharge it.  On the contrary, it is likely that if such an application is made, it will be made sooner rather than later.

5. Fourthly, unlike Grovit, this is not a case where the continuation of the action is causing such prejudice to one or more of the parties to the action as to constitute an abuse of process.  BGNV does not contend that it has suffered prejudice by the continuation of the proceedings in the circumstances.  On the contrary, it is clear that BGNV now seeks to dismiss the action in order to secure a 'forensic advantage',[10] should an application be made to discharge the undertakings, outside the terms of the liberty to apply, at some future stage.

   [10] ICWA Submissions, dated 27 March 2017 [10].

6. It is true that until such time as the action may be dismissed or discontinued, the plaintiffs will suffer the inconvenience that their files in relation to the action cannot be closed.[11]  However, that inconvenience appears to be minor, especially when viewed in the context of the action as a whole, which has now been on foot for over twenty years.  Furthermore, any inconvenience to the plaintiffs needs to be assessed in light of the fact that they have not applied, themselves, for leave to discontinue the action.  They have not done so, nor did they support, or oppose, BGNV's Application.[12]  The plaintiffs took that course because ICWA asserted the plaintiffs would be in breach of their obligations under the Settlement Deed if they sought to discontinue and BGNV asserted that they would breach the Settlement Deed if they opposed the discontinuance.  If the inconvenience to the plaintiffs amounts to prejudice, it is not, in my view, such a sufficient prejudice as to render continuation of the action an abuse of process.

   [11] ts 108 ‑ 109 (2 March 2017).

   [12] See Affidavit of Mr John Hugh Paynter sworn 24 March 2017.

7. In so far as BGNV seeks the dismissal of the action, that part of its application should be dismissed. 

Whether the alternative relief should be granted

1. I turn, next, to the question of whether the alternative order sought by BGNV in paragraph 3 of its Chamber Summons should be made.  This part of the Application should also be dismissed, for the following reasons.

2. First, the order sought by BGNV is an order to compel the parties to this action, who are also parties to the Settlement Deed, to do what BGNV contends they are obliged to do under the Settlement Deed.  In that sense, the relief sought equates to a mandatory injunction to compel the parties to take a step in this action.  However, by the Application, BGNV seeks to enforce the Settlement Deed in a summary fashion. 

3. In Thomas v Cummins[13] Beech J (as his Honour was then) discussed the factors which the Court would take into account to determine whether a party should be permitted to summarily enforce a settlement agreement (in that case, the agreement was reflected in a Tomlin order made in the proceedings).  Those factors were the extent to which matters extraneous to the original action were involved; how substantial the questions to be determined are; to what extent questions of credibility may arise; and whether pleadings and discovery may be desirable.[14]  In this case, the questions to be determined are substantial.  They involve the construction of provisions of the Settlement Deed.  The consequences of the competing constructions are significant.  In addition, the provisions in question impose obligations on the parties to use 'reasonable endeavours' to achieve certain outcomes.  The question of what is reasonable cannot be evaluated in a vacuum.  Its assessment requires evidence of all of the surrounding circumstances, which may include any detriment which may be caused if the parties are obliged to pursue the discontinuance of the action, and thereby to shut out any party from applying to discharge the undertakings in the future.  To resolve a dispute of that kind, pleadings and discovery may be desirable.  Those factors, considered together, support the conclusion that it is not appropriate to proceed to a summary enforcement of the Settlement Deed. 

   [13] Thomas v Cummins [2009] WASC 228 [30] (Beech J).

   [14] Thomas v Cummins [2009] WASC 228 [28] (Beech J).

4. A similar conclusion was reached by Justice Kenneth Martin in Williams.[15]  His Honour concluded that it was inappropriate to resolve an application to enforce a compromise agreement in a summary fashion, where factual disputes required resolution.

   [15] Williams v Coral Bay Amalgamated Holdings Pty Ltd [2013] WASC 269 [20].

5. Secondly, the basis for the relief BGNV seeks lies in what it says are the obligations of the parties under the Settlement Deed, which raises for consideration the proper construction of the Settlement Deed.  However, BGNV seeks to advance that construction argument notwithstanding that it accepts[16] that not all parties to the Settlement Deed are parties to the present action.  In my view, it would not be appropriate to determine issues concerning the construction of the Settlement Deed without giving all of the parties to that Deed the opportunity to be heard.

   [16] ts 170.

6. Thirdly, the alternative relief sought by BGNV seeks to achieve, in an indirect way, the grant to the plaintiffs of leave to discontinue the action. Initially, BGNV proposed to make an application, pursuant to O 23 r 2(3) RSC that the plaintiffs have leave to discontinue the action, and that the action be discontinued. BGNV made an oral application to that effect.[17] When it filed the Application, BGNV instead sought to achieve the same outcome, but by compelling the parties to seek an order to that effect by consent, pursuant to O 43 r 16 RSC. In my view, the criteria for an application pursuant to O 23 r 2(3) provide a useful point for comparison in determining whether to grant the relief sought by BGNV. In that respect, had BGNV brought its application pursuant to O 23 r 2(3), it would have faced two difficulties.

   [17] ts 110 ‑ 111 (2 March 2017).

7. The first would have been that what BGNV seeks, in effect, is to obtain leave for the plaintiffs to discontinue their action, in circumstances where the plaintiffs themselves do not seek that leave. In my view, the terms of O 23 r 2 support the conclusion that only a plaintiff may apply for leave to discontinue the plaintiff's action. The idea that a party other than the plaintiff could obtain leave to discontinue the plaintiff's action is, to my mind, an absurdity. Further, the form of the order ordinarily made in respect of such an application is not confined to the grant of leave to discontinue. The order ordinarily discontinues the action also. It is not difficult to envisage the potential for injustice if a party other than a plaintiff was entitled to apply to discontinue the plaintiff's claim.

8. Secondly, an application pursuant to O 23 r 2(3) RSC requires consideration of whether leave should be granted on such terms as are just. In the present case, the orders sought do not preserve the ability of the parties who gave the undertakings to apply for their discharge (outside the terms of the liberty to apply) after the action is discontinued. The purpose of the relief sought by BGNV is to preclude such an application being made. To grant the order in the terms sought by BGNV, without preserving a liberty to apply after the discontinuance of the action, may be productive of injustice, if the result is that those who gave the undertakings are shut out of an application they would otherwise be entitled to make, especially as those persons have not been given an opportunity to be heard on that question.

Conclusion

1. The Application should be dismissed.  The parties should confer with a view to submitting a minute of orders, preferably by consent, to dismiss the Application, and to deal with the costs of the Application. 

Postscript

1. After judgment was reserved on the Application, Mr Woodings made an application for a direction as to whether he should bring an application to discharge the undertakings which TBGL and BGF, and the liquidators of those companies, have given in this action.  The Master made that direction.  Mr Woodings then made an application to discharge those undertakings. 

2. I have not taken into account Mr Woodings' application to discharge the undertakings in reaching my decision on the Applications.  That development occurred well after the argument on the Application had concluded.  In any event, as I have already observed, the Application was pursued in circumstances where it was anticipated that at some time in the foreseeable future, one or more parties who had given the undertakings may seek to discharge them.