Conrad Tye v Lyrical Holdings Pty Ltd
[1997] FCA 1564
•11 DECEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 106 of 1997
GENERAL DIVISION
BETWEEN:
CONRAD TYE & ORS
ApplicantAND:
LYRICAL HOLDINGS PTY LTD & ORS
Respondent
JUDGE(S): CARR J DATE: 11 DECEMBER 1997 PLACE: PERTH
EX TEMPORE REASONS FOR JUDGMENT
The Court has before it four motions. Three of those motions (one each) are on behalf of the first, second and third respondents respectively. The fourth motion is on behalf of the applicants and other persons who wish to be joined as applicants in these proceedings under Order 6 rule 2(b) of the Federal Court Rules.
Although there are four motions, they have a great deal in common. It is possible to dispose of all of the motions by dealing with two broad issues, namely:
. whether the amended statement of claim should be struck out; and
.whether there should be separate trials in respect of the various sets of claims (currently six such sets, but on the applicants’ side it is proposed that there should be seven such sets by the joinder of a Mr and Mrs Haynes as applicants).
JOINDER OF APPLICANTS AND SEPARATE TRIALS
At this stage, I think it is appropriate for me to give a short summary of the circumstances of the principal application.
In 1994 and 1995 the first respondent, Lyrical Holdings Pty Ltd (“Lyrical”) was in the course of constructing an office block and shopping centre known as “The Colonade” (“the Centre”) in Subiaco, an inner suburb of Perth. It engaged the second respondent Realmark Pty Ltd (“Realmark”) and the third respondent, Chesterton International (WA) Pty Ltd (“Chesterton”), both of which companies are real estate agents, to find tenants for the Centre. The tenants (and persons associated with those tenants) of six of the retail premises so leased through the efforts of Realmark and Chesterton have sued Lyrical and those agents in this Court seeking relief under the Trade Practices Act 1974 (Cth). They seek leave to sanction such joinder. Still further persons associated with those tenants also seek to be joined as applicants. The tenants of a seventh retail shop in the Centre, Mr and Mrs Haynes, wish to join in the proceedings and claim similar relief on a similar basis. I shall refer to each of those seven groups of interests as being “the applicants”. Five of the applicants dealt with Lyrical through its agent Realmark. The other two applicants dealt with Realmark through its agent Chesterton. In summary, the applicants claim that certain specified and named employees of Realmark and Chesterton, respectively, made representations on behalf of Lyrical which were either false or were in respect of future matters and that there were no reasonable grounds for making those representations. Each of the applicants has retained the same solicitor. That solicitor has retained the same counsel to represent them all. Common to each of the claims of the applicants are claims for damages under s 82 of the Trade Practices Act and interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth). One of the applicants also seeks an injunction restraining Lyrical from, on that applicant’s case, further breaching its lease. In three motions filed by the first, second and third respondents respectively, each respondent seeks orders which would have the effect that, instead of there being one set of proceedings and one hearing of these disputes, there should be seven sets of proceedings and seven hearings.
It is common ground that for these proceedings to continue in the manner sought by the applicants it will be necessary for them to secure leave from the Court under Order 6 rule 2(b) of the Federal Court Rules. It is also common ground that Order 6 rule 2(a) has no application to the present matter. The second and third respondents adopt the submissions put on behalf of the first respondent. The third respondent makes some additional submissions, to which I will turn in a moment. In summary the first respondent says that the Court should not grant leave to the applicants to join together in bringing the proceedings because:
.the applicants have not “affirmatively satisfied” the Court that joinder is unlikely to result in unfairness to any respondent;
.although there may be some common or similar facts, there are so many differences between the claims made by the various applicants and the evidence which will be led in support of those claims as to make it inexpedient to join the claims;
.put slightly differently, the discrete material may overbear that which is common to all the claims;
.the shared number of claims, if joinder is permitted, would impose an undue burden upon the first respondent. As Mr K J Martin QC (who with Mr P Mendelow) appeared for the first respondent yesterday put it “there is the sheer overbearing complexity of running seven potential cases with no thread of communality or convenience”;
.Mr Martin distinguished cases substantially dependent upon documents with cases in which there are “a host” of separate conversations; and
.linked with the issue of complexity generally was the complexity involving detailed questions of damages of a different or somewhat different nature in respect of each applicant.
In support of those submissions, Mr Martin referred to a detailed and lengthy tabulation of the representations, the allegations of falsity and a summary of what was described as the little documentary evidence which appears to be common to more than any one applicant. In fact it was asserted that the only common document was a plan of the Centre. The plan is relevant to two separate representations.
I shall not read out in full the submissions made in respect of those annexures to the first respondent’s written submissions. They purport to show that 56 of the 110 alleged representations are separate and distinct representations in relation to which there exists no overlap at all, that only 14 of 54 alleged representations in relation to which some overlap may exist are the same (by which I take it is meant identical), a further 15 of the 54 alleged representations are said to have like wording to another representation but were made at different times, a further 25 of the 54 alleged representations are said to have some similarity and overlap at least once. Finally it is said that there is no representation which is identical or even similar which is common to all of the proposed seven applicants.
Similar submissions were made in relation to the allegations of falsity.
I have read the facts pleaded in the amended statement of claim and the facts which will be pleaded if Mr and Mrs Haynes are granted leave to be joined as applicants. It is true that, as might be expected, there are differences between many of the representations which are alleged to have been made to the various applicants. However, when one reads the relevant portions of the statement of claim there are common allegations of conduct comprising similar representations. Even Mr Martin in argument referred to the fact that in respect of 45% of the oral representations there was “some argument for potential overlap”. There are recurring themes in the representations. For example, there are complaints about misrepresentations concerning when the Centre would open, representions that the tenant would have an exclusive right to retail the particular products or services, the numbers of people anticipated to pass through the Centre, the degree to which the Centre had already been let and the need to move quickly to secure a tenancy. These are, I stress, only examples. At this stage I think it is pertinent to refer to a passage from the reasons for judgment of Heerey J in Jaldiver Pty Ltd v Nelumbo Pty Ltd (unreported, Federal Court of Australia, 2 December 1992, Judgment No 906 of 1992). At p 69 his Honour observed:
“The necessity of examining the pleaded representations in detail should not distract attention from the ultimate issue posed in this case, namely whether there was conduct which was misleading and deceptive. Viewed as a whole, I have come to the conclusion that the conduct of the respondent through its agents in marketing the Centre to prospective tenants involved persistent and widespread deception as to many matters which were critical to anyone considering a commitment to the Centre. Many of the representations must have been made with a reckless disregard as to whether they were true or false.”
I must emphasise that in referring to that passage I do so only to point out the task which the Court is obliged to fulfil in hearing this case or these cases. That task is to decide whether the respondents engaged in conduct which was misleading or deceptive when they (on the applicants’ case) induced them or caused them to take up tenancies in the Centre. My purpose is simply to emphasise that ultimate issue. As Heerey J observed in Jaldiver, it would be wrong in the present matter to be distracted from that ultimate issue by the minute and detailed statistical analysis which the respondents have put forward and which I have just described. In my opinion, it is more relevant to read and compare the seven sets of alleged representations and the respects in which they are alleged to be false. The next step, so it seems to me, is to make, not a mathematical calculation, but a qualitative assessment of the degree to which the various claims are either similar or overlap. After carrying out that task one can then, in turn, assess the appropriateness or otherwise of requiring the applicants to bring seven separate sets of proceedings and to conduct seven separate hearings to resolve all of the disputes.
A case which I have found to be most helpful in the resolution of this question of joinder is Bishop v Bridgelands Securities Ltd (1990) 25 FCR 311, a decision of Wilcox J. At page 314, his Honour made the following observations:
“As the discretion conferred by subr(b) is, in terms, unconfined, it would be inappropriate to specify circumstances in which it might be applied. Everything must depend upon the facts of the particular case. But it is appropriate to consider what principles ought to guide the exercise of such a discretion. The basic principle, it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr(b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party. Secondly, regard must be had to practical matters. For example, it would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors. There must be a single solicitor, or firm of solicitors, who is accountable for the conduct of the proceeding on the applicants’ side of the case. Similarly, although all applicants might propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims. The discrete material may overbear that which is common to all the claims. Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impose an undue burden on the respondent; although it seems to me unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claims.”
Wilcox J’s decision in Bishop was followed by Rogers C.J. (Commercial Division of the Supreme Court of New South Wales) in Springfield Nominees Pty Ltd v Bridgelands Securities Limited (1991) ATPR 41-078. See also Miliss Pty Ltd v Kerin (Federal Court of Australia, unreported, Morling J, 22 June 1988, Judgment No. 492 of 1988). In terms of unfairness, first the applicants point to additional disbursements to which they will be put if joinder is not allowed. These comprise an extra $6,000 in filing fees, together with an increase in the fees payable when listing for hearing amounting to a further $10,000. Then the daily hearing fees will be increased from $800 per day to $4,800 per day i.e. an additional fee of $4,000 per day. The respondents say that I should not take these disbursements into account in deciding whether there should be a joinder of the parties. They say that to do so would be contrary to the policy evinced by the imposition of such fees. In turn, Mr N P Gentilli, counsel for the applicants, says that that policy is a “user pays policy”. Filing fees are paid, so he submitted, to cover the costs of setting up the system for each application. If only one system has to be set up, there is nothing contrary to that policy in having only one filing fee paid. I think there is merit in that submission. I consider that I am entitled to take into account, and I do, the extra filing fees which the applicants would have to pay. The same applies to the hearing fees. Presumably the hearing fees are designed partially to recoup the costs of each day of hearing. The policy as applied seems happily to accommodate lots of cases in which there are multiple applicants and where the practice is to collect only one hearing fee. It appears that whether $800 per day (being the hearing fee payable by a corporation) or $400 per day (being the hearing fee payable by an individual) is collected depends upon whether the first applicant named in the group of such applicants is a corporation in such cases. I see nothing contrary to the policy of recovering part of the costs of conducting a hearing in the joinder of several applicants to the one set of proceedings. On the contrary, such a process will reduce the average cost burden for litigants and thereby facilitate access to justice. It is also likely to contribute to the efficiency of the Court if multiple disputes can fairly be dealt with as one set of proceedings and one hearing. Accordingly in my view the potential for a legitimate saving of $4,000 per day by the applicants is a factor which I consider that I am entitled to take into account, which I should take into account and which I do take into account. I also take into account the likelihood that by having seven sets of applicants instructing one set of solicitors and those solicitors instructing one counsel, there will be very substantial costs savings in the preparation for trial, including interlocutory steps and the presentations of the cases at trial when compared to having seven separate applications, even if they were each handled by the same legal team. Senior counsel for the first respondent conceded that I was entitled, when assessing such matters, to take into account my personal experience. That experience points quite clearly to a likelihood of the saving of considerable costs in running one composite application rather than getting up seven separate applications and then having seven separate trials. A further matter is the distinct likelihood, in my view, of general savings of costs all round. If there has to be seven hearings rather than the one hearing then, in my view, significant ground will have to be gone over again and again. For example, in many of the hearings there will have to be a re-run of the evidence concerning when the Centre opened, the state in which it was when it was so opened, how much of the Centre was leased at the various times leading up to the opening of the Centre, whether the Centre was open in the evenings or on Sundays. There would be other common matters to the seven hearings. Counsel for the applicants suggested that, on the assumption that each party was represented by senior and junior counsel and one solicitor that the average outlay would be approximately $6,000 per day of hearing. In the end that calculation was not challenged. There would be four parties to at least two of the sets of applications. That means for each day occupied in repeating that evidence there will be $24,000 wasted. Where there are only three parties (in the other five cases) the waste would be reduced to $18,000 per day, but it would still be a very substantial waste.
The matter of admissibility of similar fact evidence in these cases loomed large in both the written submissions and the oral submissions from counsel yesterday. I return to that subject in a moment. At this stage, it is sufficient to point out that if similar fact evidence were admitted and there had to be seven separate hearings, the risk of wasted costs would be greater than that which I have just indicated. As counsel for the applicants submitted, in each case other applicants would be cross-examined two, three or even five times, when they should only be cross-examined once in the one hearing. Otherwise, many more days would be wasted.
I now turn to the arguments which the first respondent advances on the question of unfairness. First, it is said that the blurring of many distinct issues as between a variety of applicants is itself oppressive, because it mixes what may be a weaker case and better cases all in together. If that submission is intended to suggest that in the eventual outcome of a trial there will be an enhancement of a “weaker case” by association with a stronger case, I reject the submission out of hand. It was contended that mixing weaker and stronger cases rendered a potential resolution as between individual applicants more difficult to achieve, if the overall position of all applicants is to be appraised generally and not individually. I disagree. I think it is well within the wit of those on each side to assess the relative strengths of each case and to negotiate accordingly. Then it is said that the practicalities of running a trial and taking a view as to what evidence will be relevant and admissible to each individual applicant’s causes of action “loom as a nightmare for all concerned”. I accept that difficulties may well be encountered at trial. But I do not think that they will be insurmountable. Many a case with multiple applicants has successfully been run. Jaldiver is but one example of that. That case, like the present case, involved seven sets of lessees in a shopping centre who recovered damages for misleading or deceptive conduct constituted by representations made prior to their entering their respective leases. In any event, in terms of alleged “unfairness” the logistical difficulties are likely to be evenly spread among the parties and the Court. Another case which involved multiple applicants (at least 15 of them) with claims which included alleged contraventions of s 52 of the Trade Practices Act was Henderson v Amadio (1995) 62 FCR 1.
Next in terms of alleged unfairness, the first respondent refers to Mr Percudani’s position. Mr Percudani is the agent who, on behalf of the first respondent, is alleged to have an involvement with most of the representations. The first respondent says that it would be oppressive for Mr Percudani to be subjected to a prolonged cross-examination in relation to possibly seven separate transactions in one trial without respite. Conversely, so it is put, each applicant will enjoy the forensic advantage of only being required to testify in relation to that party’s individual transaction as pertaining to that applicant. I do not accept this as an element of unfairness. If the cross-examination of Mr Percudani is so prolonged as to become oppressive, then it will be very likely that the trial judge will alleviate the situation by giving him a break or breaks at an appropriate time or times. Then it is said, on behalf of the first respondent, that it would be unfair for its solicitors and counsel to shoulder “the sheer weight of having to deal with 110 separate alleged representations, 89 separate allegations that such representations were false, and more than 30 separate allegations of loss and damage”. It is said that this is particularly so, in light of there being “little common factual evidence underlying the separate claims of each applicant”. I must say I find this a strange suggestion of unfairness as justifying seven trials rather than one. In my opinion, too much is sought to be made of this point. To start with, many of the representations have a great deal of similarity with each other. Putting to one side the mathematical calculations, my assessment of the pleaded representations and their alleged falsity is that on a qualitative basis there are many common issues of fact and law. The evidence of and the issues arising out of the various representations will emerge sequentially in the one trial at no greater speed than if they emerged by being spread over seven trials. It should not be too difficult for counsel on each side to work out a method of dealing as satisfactorily with the representations in one trial than if they were spread over seven trials. There have been many far more complex cases than this one heard in this Court (see particularly Henderson v Amadio) and doubtless there will be many more in the future.
This leads to a consideration of what I consider to be, potentially, a more serious source of prejudice to the first respondent. That is the question of prejudice arising from the admission of what has been described as “similar fact evidence”. The applicants foreshadow that they will be seeking to adduce evidence of similar representations being made to the various sets of applicants. The first respondent points to the manner in which Heerey J in Jaldiver distinguished that case from D F Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 100 ALR 468. In that case Gummow J held that evidence of the dealings by the bank manager in question with various customers other than the applicant was inadmissible as being irrelevant. At p 478 his Honour held that, even had he been of the contrary view on the question of relevance, he would have exercised his discretion by refusing to receive it into evidence. The main reason for that was because what his Honour described as a “cobweb of subsidiary factual disputes would be spun and further issues of credit could arise”. One of the bases for Heerey J taking a different course in Jaldiver, and this is what concerns the first respondent particularly, was that in the latter case the similar fact evidence was not evidence proffered of an alleged similar experience encountered by a stranger to the litigation in dealings with the respondent. The evidence in question was directly admissible in support of the case of each applicant who gave it. I do not think that this is the time at which to embark upon consideration of whether the evidence of the various applicants is likely to be treated as similar fact evidence and admitted as evidence in support of the cases advanced on behalf of other applicants. That is something which should be dealt with at trial. There is at least one way in which it can be fairly dealt with. I refer to the approach taken by Hill J in Aroutsidis v Illawara Nominees Pty Ltd (1990) 21 FCR 500 at 507-508. In that case, when objection was taken to the admission of what was alleged to be similar fact evidence, his Honour allowed the evidence to be led subject to objection because, as his Honour put it:
“ ... it seemed to me that without further evidence and an understanding of precisely how the applicants’ case was to be put it was not necessarily possible at that stage to determine whether the evidence was logically probative.”
With respect, I consider that is one very sensible and fair way of dealing with the problem of admissibility. Mr Martin suggested that it would be fairer to have seven separate trials with perhaps a break or breaks in between, presumably to lessen the potentially prejudicial impact of hearing the evidence which the applicants contend is similar fact evidence. I do not think that it will make any difference, in terms of prejudice to the first respondent, whether the problem of the admissibility or otherwise of similar fact evidence is dealt with at the one hearing or in the course of the seven separate hearings which the first respondent seeks. The evidence will either be admissible or inadmissible and rulings will have to be made in accordance with the rules of evidence in the course of one hearing or in the course of seven hearings. If the evidence is ruled admissible only in respect of one particular set of applicants it can be so treated by the trial judge. In my view, there is no need for there to be seven separate trials.
To sum up, on the question of fairness I consider that no significant unfairness has been demonstrated as likely to be visited upon the first respondent if there is one set of proceedings and one trial than if there were seven sets of proceedings and seven trials. I do not read in Wilcox J’s reasons for judgment in Bishop any kind of onus on any party to establish the presence or absence of unfairness. I think when his Honour refers to a judge being satisfied, his Honour was referring to being satisfied after a general review of the facts and submissions made by the respective parties. If there is any such prejudice, in my view it is far outweighed by the inconvenience and expense (which I have detailed earlier) to which the course advocated by the respondents would expose the applicants.
There are other factors which also point in favour of there being only one set of proceedings. First there is the risk of inconsistent findings. I do not put that factor too highly, but I take it into account. Furthermore, there is a risk of inconsistent rulings on matters such as the admission of similar fact evidence, particularly if not all of the seven cases are heard by the one judge. Again, I regard that as a factor, but in the scheme of things not a major one. Then I think regard must be had to s 22 of the Federal Court of Australia Act which relevantly provides that this Court, in every matter, shall grant all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided. The word “matter” has been described as a term of wide import. I think it is wide enough to encompass all of the disputes which exist between the applicants and the respondents and all of the remedies which they seek from this Court. Mr Martin submitted that nothing in s 22 undermined the considerations referred to by Wilcox J in Bishop. I agree with that. Mr Martin, on several occasions, referred to the number of oral representations which are relied upon in the present case compared to the situation in Bishop. In Bishop the applicants waived reliance upon oral communications so as to obtain leave for the joinder sought in those proceedings. The matter proceeded, apparently, on the basis of the contents of three particular letters. I would distinguish Bishop’s case on that point. Here there are only seven sets of applicants not 114 or 116 (various figures were referred to in the report of Bishop).
The third respondent advances a separate anti-joinder argument, based on the matter of costs. Mr R E Birmingham QC, counsel for the third respondent, said that on the assumption that the sixth applicant’s case would run for only five days then at $6,000 per day his client’s total costs for representation at a separate hearing would amount to $30,000. If, however, counsel for the third respondent had to be present for 35 days of hearing the cases of all six sets of applicants then $210,000 would be required, an extra cost of $180,000. Even if Mr and Mrs Haynes were joined (their claims involve the third respondent) then at least $150,000 would be wasted. In my view, the answer to that submission is that directions can be made to avoid the need for the third respondent to be represented throughout the trial. Some care will need to be taken in preparing such directions, but it should be possible to make them, once the witness statements have been filed. If, at that stage, such a course turns out to be impractical, then the question of ordering a separate trial for the sixth and seventh sets of applicants can be revisited. In my view, at the moment, it has not been demonstrated that it is necessary to order a separate trial of the matters in which the third respondent is involved. It must also be remembered that the first respondent is involved in each of those two cases. In the meantime, all interlocutory proceedings should advance towards trial, simultaneously.
WHETHER THE AMENDED STATEMENT OF CLAIM SHOULD BE STRUCK OUT?
The first respondent contends that the amended statement of claim does not disclose a cause of action against it. It refers to the fact that each of the applicants claim damages against the first respondent. It also says that in order to recover damages the applicants must prove that the loss or damage claimed to have been suffered was “by” conduct in breach of the Trade Practices Act. There is no issue over that proposition. Next, the first respondent contends that the statement of claim does not plead the necessary material facts to establish the causal relationship between the alleged contraventions and the loss. In those circumstances, so the first respondent submits, proof of loss or damage being necessary to the cause of action, the statement of claim should be struck out. It relies on Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222 for that proposition. The first respondent further contends that it is not enough, in order to recover losses, for an applicant to prove that but for the misleading conduct or as a partial consequence of it the agreement to purchase would not have been made. It relies on Netaf Pty Ltd v Bikane Pty Ltd (1990) 26 FCR 305 at 308 for the proposition that it is not the law that in every case the party held to have engaged in misleading conduct becomes “the insurer” of the other’s success and prima facie liable to indemnify him against the consequences of the purchase. The first respondent complains that in the amended statement of claim all the damages are “just lumped together and no attempt is made to say what damage was suffered by each particular applicant, or how this came about”. In particular, the first respondent says that there is no causal connection pleaded between each item of damage claimed and the alleged contravening conduct. Examples referred to are that:
.it is not pleaded what causal connection exists between the alleged offending conduct and the claim for the applicants’ fit-out costs;
.in relation to the alleged trading losses sustained by the second applicants the first respondent’s complaint is that they do not appear to constitute trading losses, but rather reflect a trading profit.
The particular paragraphs which the first respondent claims are defective in not pleading in the manner to which I have just referred are paragraphs 13B, 13C, 21B, 32B, 38B, 47B and 52B. Some of those paragraphs are relevantly identical, but there are variations between them. I shall take paragraph 21B as a reasonably typical example. It reads:
“By reason of the misleading and deceptive conduct pleaded in paragraphs 16, 16A, 17, 18, 19, 19A and 19B causing the second applicant Bruvecchis Pty Ltd to enter into the lease of Shop G5 and to trade from that shop the second applicants have suffered loss and damage.
I have read each of the pargraphs referred to immediately above. In my view paragraph 21B sufficiently pleads that the loss or damage thereafter particularised was caused by the misleading or deceptive conduct pleaded in the paragraphs to which reference is made. I should deal with the specific complaint that there is no plea of what causal connection exists between the alleged offending conduct and the claim for fit-out costs. In my view, not only is that expressly pleaded but it is obvious. There is the plea of misleading and deceptive conduct. There is the plea that such misleading and deceptive conduct caused the second applicant to enter into the lease of Shop G5 and to trade from that shop. Then there is the plea that it has thereby suffered loss and damage. An item in that loss is particularised as fit-out costs of $172,830.09. The same in my view, applies to the other paragraphs of which complaint are made, which I have just read out. It is trite law that the function of a statement of claim is to state with sufficient clarity the case which a respondent must meet. In my view, the amended statement of claim does this and I reject the first respondent’s contentions. In my opinion, causation is sufficiently pleaded. Any concerns which the first respondent may have about particular items of financial loss can be dealt with by a request for further and better particulars. The amended statement of claim will not be struck out at the instance of the first respondent. For the reasons which I have given there will be orders to the effect that so much of the first, second and third respondents respective motions as seek to strike out the applicants’ claims on the basis of wrongful joinder and so much of the first and second respondent’s motions which seek to strike out the statement of claim on the pleading point which I have just considered will be dismissed. In respect of the applicants’ amended motion for joinder of parties there will be orders granting the leave sought in paragraphs 1 and 2 of the amended notice of motion filed on 8 December 1997. The applicants are to bring in minutes of orders within 7 days to give effect to these reasons. I will hear counsel on the question of costs before proceeding to hear the third respondent’s motion to strike out the amended statement of claim.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Carr
Associate:
Dated: 3 February 1998
Counsel for the Applicant: Mr N P Gentilli Solicitor for the Applicant: Robert Lashansky Counsel for the First Respondent: Mr K J Martin QC with Mr P Mendelow Solicitor for the First Respondent: Messrs Karp & Monaghan Counsel for the Second Respondent Ms K Halliley Solicitors for the Second Respondent Messrs Minter Ellison Counsel for the Third Respondent Mr R E Birmingham QC with Mr R G Codling Solicitors for the Third Respondent Messrs Phillips Fox Date of Hearing: 10 & 11 December 1997 Date of Judgment: 11 December 1997
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