CPG01 Pty Ltd v Kourinos
[2010] WASC 92 (S)
•9 FEBRUARY 2010
CPG01 PTY LTD -v- KOURINOS [2010] WASC 92 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 92 (S) | |
| Case No: | CIV:1513/2009 | 9 FEBRUARY 2010 | |
| Coram: | HASLUCK J | 9/02/10 | |
| 9/02/10 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to intervene refused | ||
| 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
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 materials but, importantly, it includes copies of the contracts signed by Wilson, Ace High and Wildsort, being contracts apparently signed in June 2007 that are said to resemble the contract the subject of these proceedings; that is, CIV 1513 of 2009. I will come back to that aspect of the matter.
4 The evidentiary materials before me include also the affidavit of Samantha Bellini sworn 9 February 2010, being an affidavit filed by the plaintiff in opposition to the non-party's application to intervene.
Background
5 The present application comes before me on the eve of the trial of the action brought by CPG01 Pty Ltd as plaintiff against the defendants, Katrina Jayne Kourinos, Kevin Leonard Hunt and Renee Hunt. The trial in question is listed to commence before me as the presiding judge tomorrow, 10 February 2010. It is therefore necessary that the present application be dealt with immediately so that all parties with an interest in the matter will know how they stand procedurally at the commencement of the trial.
(Page 4)
6 The background to the matter listed for trial (being CIV 1513 of 2009) is conveniently described in the plaintiff's outline of submissions dated 5 February 2010. I am referring to that outline simply in order to provide an orderly narrative. I am not in any sense accepting or making any findings as to the matters referred to in the submissions.
7 The action concerns an agreement for the sale and purchase of land in Waroona made between the plaintiff CPG as seller and the defendants as purchasers. The subject land was lot 21 on the relevant plan of subdivision (now described as lot 112).
8 I note in passing that in the agreement the buyer was described as the defendant parties I have just mentioned, but, importantly for present purposes, the description of the buyer included reference also to 'and/or nominee'.
Legal principles
9 The rules of court and certain passages in the outline I have mentioned allow for intervention where the interests of a non-party will be indirectly affected by the determination of the court. The court has a discretion to permit intervention if such intervention would be in the interests of justice.
10 The present application is made essentially pursuant to such a precept, namely, that another party will be indirectly affected, and therefore it is a question of whether an intervention should be allowed.
11 This is recognised in the submissions concerning intervention advanced on behalf of the plaintiff. It is said in par 3 of those submissions:
The non-parties may be indirectly affected by the decision in these proceedings because they have entered into a separate contract for the sale of land with the plaintiff incorporating the same special conditions as are incorporated in the contract the subject of these proceedings and in respect of which the same issue has arisen as to the proper construction of clause 3.3.2 of the special conditions.
12 In the plaintiff's submissions it is said, after some further discussion, that this Honourable Court ought not to exercise its discretion in favour of the non-parties for various reasons which are then described. I refer particularly to this passage in the submission:
It is apparent that the non-parties are seeking to intervene on the wholly unsubstantiated basis that those representing the defendants in these
(Page 5)
- proceedings may not present fully the submissions on the issue of construction.
13 Reference is then made to what was said by Brennan CJ in Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31 at 603 of the report as follows:
However, where a party having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the court should have to assist it to reach a correct determination, the court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions as to costs or otherwise as will do justice as between all parties. In that situation, intervention may prevent an error that would affect the interests of the intervener. Of course, if the intervener's submission is merely repetitive of the submission of one or other of the parties efficiency would require that intervention be denied.
14 It is therefore said in the context of this case by the plaintiff that this is a case where efficiency requires that intervention be denied. This is because the would-be intervener acknowledges that the defendants are minded to adopt its submissions. It might be said, to use the vernacular, that the would-be intervener would essentially be in the role of a 'safety net' in case some aspect of the case was not fully or properly put by or on behalf of the defendants. The plaintiff therefore submits that this is not a case where the exercise of the discretion where intervention should be allowed.
15 The point just mentioned might be regarded as sufficient to dispose of the application. However, it is said further in the plaintiff's submissions that there is a real prospect that the joinder of the proposed non-parties in these proceedings may create real difficulties as to the application of issue estoppel.
16 In other words, the non-parties accept, as they must, that if they intervene in these proceedings the doctrine of issue estoppel will apply as between them and the plaintiff. Real questions and perhaps difficulties would then arise as to what issue the parties are estopped from agitating in the District Court proceedings in which the plaintiff and the non-parties are involved. The same special conditions apply in both cases of the contract, but the purchasers are different.
17 Moreover, as the proper construction of the special conditions is to be determined in these proceedings by reference to facts known by the
(Page 6)
- parties as at the date of the contract, difficult issues may arise as to how a determination made in that context impacts upon the matters in dispute. Will this court's decision bind the parties as to the proper construction of the contracts the subject of the proceedings in the District Court?
Further observations
18 For all these reasons it is submitted by the plaintiff that not only does no proper basis exist to warrant the non-parties intervening in these proceedings, but also to allow intervention will be positively inconsistent with the efficient disposition of the business of the Supreme Court in promoting a just determination of litigation and maximising efficient use of the available judicial resources.
19 It seems to be recognised by all parties that if intervention were allowed it would not complicate the hearing of the trial greatly because the role of the would-be intervener could be confined to the making of submissions bearing upon the legal issues. I am conscious of that aspect of the matter and will bring it to account in deciding what is to be done.
Conclusion
20 Against the background I have described, I am of the view that a balance must be struck between the efficient disposition of the trial (which brings with it some hesitation in allowing undue complication of a trial) and the requirements of the rules of natural justice.
21 In certain circumstances those rules, in the exercise of the discretion, may favour the allowance of an intervention. However, in the circumstances of the present case, I have to say that I am persuaded by the submissions made by the plaintiff. It has not been made clear to me what additional line of argument might be put or advanced by the would-be intervener which would be neglected, or might not be pressed with sufficient force, if the proposed intervention were not allowed.
22 That being so, the prospects are that the concerns of the intervener will be adequately met by the stance of the defendants in these proceedings as I have described it. I therefore do consider, in the exercise of the discretion in a case of indirect effect, as I have described it, that there is not sufficient justification to allow the would-be intervener to intervene in the manner contemplated by the chamber summons. I therefore rule accordingly and the application in the subject chamber summons dated 24 December 2009 will be dismissed.
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