CT Money Pty Ltd v AFIG Wholesale Pty Ltd

[2009] NSWSC 997

CITATION:	CT Money Pty Ltd v AFIG Wholesale Pty Ltd [2009] NSWSC 997
HEARING DATE(S):	22 September 2009
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	22 September 2009
DECISION:	Hearing vacated and matter stood over before Registrar.
CATCHWORDS:	PROCEDURE - Miscellaneous Procedural Matters - Adjournments - hearing to decide costs of statement of claim and first cross-claim - application to vacate hearing by plaintiff - written submissions of defendant cross-claimant received late - plaintiff becomes aware for first time that cross-claim may be reconstituted to claim loses related to borrowers introduced by second cross defendant - second cross-defendants insurer may be joined - plaintiff may have claim if refusal to indemnify as it paid premium - second cross-defendant was seeking order for costs against defendant - informed plaintiff now seeking costs against it this morning - plaintiff wishes to respond to defendant's submissions and consider its position in relation to second cross defendant's changed attitude
CATEGORY:	Procedural and other rulings
CASES CITED:	Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
PARTIES:	CT Money Pty Ltd (Plaintiff/First Cross-Defendant) AFIG Wholesale Pty Ltd (First Defendant/First Cross-Claimant) Australian Mortgage Securities Pty Ltd (Second Defendant/Second Cross-Claimant) DC Corporation Australia Pty Ltd (In liq) (Second Cross-Defendant)
FILE NUMBER(S):	SC 5957/07
COUNSEL:	A Cheshire (Plaintiff/First Cross-Defendant) J Svehla (First and Second Defendants/First and Second Cross-Claimants)
SOLICITORS:	McLachlan Thorpe (Plaintiff/First Cross-Defendant) Hicksons Lawyers (First and Second Defendants/First and Second Cross-Claimants) (Zoe Ramsay) Uther Webster & Evans (Second Cross-Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 22 SEPTEMBER 2009

5957/07 CT MONEY PTY LTD v AFIG WHOLESALE PTY LTD & ANOR

EX TEMPORE JUDGMENT

1 The question of costs of the statement of claim and costs of the first cross-claim consequent upon the reasons for judgment of the then Chief Judge in Equity on 12 December 2008 was stood over for hearing before me today.

2 The parties were obliged to provide written submissions. Written submissions were provided by the plaintiff, which I will refer to as CT, and by the defendants and cross-claimants, which I will refer to as AFIG.

3 The second cross-defendant, which I will refer to as DC, sought an order for costs against CT but provided no formal submissions.

4 The submissions of counsel for AFIG contained the statement at paragraphs 21 - 27 that DC had been joined to be bound by the declaratory relief sought. There was no suggestion of any controversy between AFIG and DC that was to be resolved.

5 Those written submissions were served on 17 September 2009 at 4.30 pm. The directions required them to be served by 9 September. A letter to my Associate of 10 September sought an extension of time, but was sent without the consent of the solicitors for CT.

6 The reason the submissions were late was that there had been further losses related to DC borrowers that were not the subject of the proceedings in which Young CJ in Eq pronounced his reasons, and continuing negotiations had taken place between AFIG and DC in relation to those losses culminating in a meeting that could not take place before 14 September 2009. Counsel for AFIG, quite correctly, took the view that he ought not to serve submissions that might have to be withdrawn as a result of the 14 September meeting. But that meant that counsel for CT did not receive the submissions until well after 17 September.

7 The submissions are detailed covering some 17 pages, together with a schedule setting out the declaratory relief that Young CJ in Eq indicated he would make.

8 Counsel for CT says that when he read those submissions he became aware for the first time that the first cross-claim was potentially to be used as a vehicle for further claims by AFIG against DC. In paragraphs 15-19, AFIG said that by consent of DC it sought an order that its first cross-claim against DC be adjourned for approximately six months, to be listed for directions on 21 March 2010 to enable, if negotiation is not successful, a reconstitution of the first cross-claim to seek relief against DC with respect to the further losses and possibly joining DC’s insurer if it refused to indemnify DC.

9 CT says it needs the opportunity to explore those contentions because if AFIG seeks to join the insurer of DC, there is the potential for CT to become involved in the proceedings because CT paid the premium and there may be a right in CT to call upon the insurer of DC to honour the policy in favour of DC.

10 A further complication has arisen because the representative of DC informed counsel for CT before court this morning that instead of seeking an order that AFIG pay DC's costs to date, an order will now be sought against CT.

11 Counsel for CT submitted that it was not only a matter of convenience that any further claims by CT arising from the further losses related to DC borrowers be dealt with in these proceedings, there was a prospective argument under Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589 if separate proceedings be instituted.

12 Counsel for CT also says that his client wishes to respond to the submissions of AFIG and has not had the opportunity to do so. In addition, his client wishes to consider the change in the orders sought by DC. He seeks an adjournment to enable these matters to be considered.

13 Counsel for AFIG agrees that CT should have the opportunity of exploring its position to determine whether it wishes to maintain a presence in relation to any reconstituted proceedings.

14 Counsel for AFIG submits, however, that the question of costs up to the time that Young CJ in Eq pronounced his reasons can be dealt with separately from the question whether the first cross-claim is to be reconstituted and with or without the presence of CT. He submits that the costs are those in the past and the costs of today, and have no bearing on any costs that might be incurred by the continuation of the proceedings.

15 I have my doubts that issues raised if the proceedings are continued cannot have a bearing on the issues of costs thus far. I am also of the view that CT ought to be in a position to answer the submissions served by AFIG and to consider its position in relation to the change of attitude of DC as to who should pay its costs.

16 In those circumstances, I accept the application made on CT's behalf to vacate today's hearing and stand the matter over for further consideration.

17 I vacate the hearing before me today. I stand the matter over before the Registrar at 9.15 am on 22 March 2010. I grant liberty to apply to the Registrar on 48 hours’ notice. The costs of today I reserve.

**********