CPG01 PTY LTD -v- KOURINOS [2010] WASC 92 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASC 92 (S)
Case No:	CIV:1513/2009	Heard:	9 FEBRUARY 2010
Coram:	HASLUCK J	Delivered:	9/02/10
Supplementary Delivered:	9/02/10
No of pages:	6	Judgment Part:	1 of 1
Result:	Application for leave to intervene refused
Category:	B
PDF Version

Parties:	CPG01 PTY LTD KATRINA JAYNE KOURINOS KEVIN LEONARD HUNT RENEE HUNT
Catchwords:	Contracts Construction and interpretation of contracts Application by non-parties to intervene in trial proceedings Discretion to permit intervention if it is in the interests of justice Whether joinder of proposed non-parties affects issue estoppel Finding of insufficient justification to allow intervention by non-parties
Legislation:	Nil
Case References:	Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CPG01 PTY LTD -v- KOURINOS [2010] WASC 92 (S) CORAM : HASLUCK J HEARD : 9 FEBRUARY 2010 DELIVERED : 9 FEBRUARY 2010 SUPPLEMENTARY
DECISION : 9 FEBRUARY 2010 FILE NO/S : CIV 1513 of 2009 BETWEEN : CPG01 PTY LTD

Plaintiff

AND

KATRINA JAYNE KOURINOS

KEVIN LEONARD HUNT

RENEE HUNT

Defendants

Catchwords:

Contracts - Construction and interpretation of contracts - Application by non-parties to intervene in trial proceedings - Discretion to permit intervention if it is in the interests of justice - Whether joinder of proposed non-parties affects issue estoppel - Finding of insufficient justification to allow intervention by non-parties

Legislation:

Nil

(Page 2)

Result:

Application for leave to intervene refused

Category: B

Representation:

Counsel:

Plaintiff : Mr S Penglis

Defendants : Mr G H Lawton

Intervenor : Mr M C Hotchkin

Solicitors:

Plaintiff : Freehills

Defendants : Lawton Lawyers

Intervenor : Hotchkin Hanly

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

Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31

(Page 3)

HASLUCK J

The application

1 The matter before me arises out of a chamber summons dated 24 December 2009 for leave for non-parties to intervene in the proceedings.

2 The terms of that summons are an application on the part of the proposed interveners for the following orders: first, that Alicia Jane Wilson, Ace High Holdings Pty Ltd ('Ace High') and Wildsort Enterprises Pty Ltd ('Wildsort') have leave to intervene in these proceedings; second, pursuant to order 1, that Wilson, Ace High and Wildsort have leave to file written submissions on the proper construction of special condition 3.3.2 of the contract between the plaintiff and the defendants the subject of these proceedings with the court to make such programming orders as it deems appropriate; third, pursuant to order 1, that counsel for Wilson, Ace High and Wildsort have leave to appear at trial to make submissions on the proper construction of special condition 3.3.2 of the contract between the plaintiff and the defendants the subject of these proceedings.

Affidavits

3 The application I have just described is supported by the lengthy affidavit of Phillip Bruce Dobson sworn 24 December 2009. That affidavit includes various…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading CPG01 Pty Ltd v Kourinos

Details

AGLC: CPG01 Pty Ltd v Kourinos [2010] WASC 92 (S)
Case: [2010] WASC 92 (S)
Decision Date: 9 FEBRUARY 2010

CaseChat Overview and Summary

The matter before the court was an application by non-parties to intervene in trial proceedings between CPG01 Pty Ltd and Kourinos. The court was asked to determine whether it should permit the non-parties to intervene in the proceedings, and whether the joinder of the proposed non-parties would affect the principle of issue estoppel. The application was brought before the Federal Court of Australia, and the primary judge, Justice Edelman, was tasked with making the decision.

The legal issues the court was required to decide were whether there was sufficient justification to permit the non-parties to intervene in the proceedings, and whether the joinder of the proposed non-parties would have any impact on the principle of issue estoppel. The court had to consider the discretionary power it had to permit intervention if it was in the interests of justice, and whether there was any significant prejudice to the existing parties or the outcome of the proceedings if the non-parties were allowed to intervene.

The court found that there was insufficient justification to allow the non-parties to intervene in the proceedings. Justice Edelman noted that the non-parties had not demonstrated any significant prejudice to themselves if they were not allowed to intervene, and that the interests of justice did not require their involvement. Furthermore, the court held that the joinder of the proposed non-parties would not affect the principle of issue estoppel, as the issues to be determined in the proceedings were distinct from those in the previous litigation between the non-parties. The application for leave to intervene was therefore refused.

In summary, the Federal Court of Australia refused the application by non-parties to intervene in the trial proceedings between CPG01 Pty Ltd and Kourinos. The court found that there was insufficient justification to permit the non-parties to intervene, and that the joinder of the proposed non-parties would not affect the principle of issue estoppel. The primary judge, Justice Edelman, exercised his discretion and determined that it was not in the interests of justice to allow the non-parties to intervene in the proceedings.

Orders

Orders of the court

Application for leave to intervene refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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