Custombuilt Homes Pty Ltd v Dowell
[2005] WADC 153
•9 AUGUST 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CUSTOMBUILT HOMES PTY LTD -v- DOWELL & ANOR [2005] WADC 153
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 27 JULY 2005
DELIVERED : 9 AUGUST 2005
FILE NO/S: CIV 1857 of 2001
BETWEEN: CUSTOMBUILT HOMES PTY LTD (ACN 009 393 051)
Plaintiff/Judgment Debtor
AND
ASHLEY KEVIN DOWELL
First Defendant/Judgment CreditorSHOANA LEANNE DOWELL
Second Defendant/Judgment Creditor
Catchwords:
Practice and procedure - Execution of judgment - means inquiry - Suspension order - Stay of execution
Legislation:
Civil Judgment Enforcement Act 2004
Result:
Application for a suspension order dismissed
Representation:
Counsel:
Plaintiff/Judgment Debtor: Mr P Van Der Zanden
First Defendant/Judgment Creditor: Mr G M Abbot
Second Defendant/Judgment Creditor: Mr G M Abbott
Solicitors:
Plaintiff/Judgment Debtor: Bennett & Co
First Defendant/Judgment Creditor: Biddulph & Turley
Second Defendant/Judgment Creditor: Biddulph & Turley
Case(s) referred to in judgment(s):
Cayne v Global Natural Resources plc [1984] 1 All ER 225
Custombuilt Homes Pty Ltd v Dowell & Anor [2003] WADC 121
Custombuilt Homes Pty Ltd v Dowell & Anor [2005] WASC 25
Dowell & Anor v Custombuilt Homes Pty Ltd [2004] WASCA 171
Hamersely Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 81
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
The Commissioner of Taxation for the Commonwealth of Australia v The Myer Emporium Limited (1986) 160 CLR 220
Case(s) also cited:
Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Croney v Nand [1999] 2 Qd R 342
McBride v Sandland (No 2) (1918) 25 CLR 375
Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354
PRINCIPAL REGISTRAR GETHING: In this matter, the plaintiff/judgment debtor, Custombuilt Homes Pty Ltd ("Custombuilt"), has made an application for an order suspending enforcement of all or part of a judgment debt obtained against it by the defendants/judgment creditors, Ashley Kevin Dowell and Shoana Leanne Dowell ("the Dowells").
The judgment debt, an amount in the sum of $45,263.22, arises out of an action commenced in this Court by Custombuilt against the Dowells relating to the dissolution of a business carried on by the Dowells and the directors of Custombuilt, Gary and Gloria Green ("the Greens") using, among other entities, the corporate vehicle of Custombuilt. Custombuilt was partially successful in its action against the Dowells in this Court (see Custombuilt Homes Pty Ltd v Dowell & Anor[2003] WADC 121). However, this decision was overturned on appeal (see Dowell & Anor v Custombuilt Homes Pty Ltd[2004] WASCA 171) (I will refer to this decision as the "Full Court Decision"). Among other orders made by Full Court, judgment was entered for the Dowells, and Custombuilt was ordered to pay the Dowells costs of the action, the appeal and the cross-appeal to be taxed. The judgment debt comprises the taxed costs of the Dowells in this Court.
This matter first came before me on 4 July 2005 on a means enquiry under the Civil Judgments Enforcement Act 2004 ("CJEA"). In particular, the Dowells had summonsed Mr Green to attend the court for the purposes of a means inquiry under CJEA Pt 4 Div 2. The means inquiry took place. In the course of the means inquiry, counsel for Custombuilt foreshadowed making an application for a suspension order under CJEA s15. Consequently, I adjourned the matter to 27 July 2005, and made directions in relation to the foreshadowed application. On that date, Custombuilt's application for a suspension order was heard.
Custombuilt filed three affidavits in support of its application: an affidavit of Mr Green sworn 4 July 2005, and two affidavits of Annabelle Helen Hughes, a solicitor employed by Custombuilt's solicitors, sworn 11 and 27 July 2005. The Dowells had liberty to file affidavits in response, but chose not to do so.
Factual Background
The relevant factual background in this case has been extensively canvassed at first instance before this Court, and again by the Full Court, in the judgments I have referred to above. The factual background was also recently canvassed by Master Sanderson in Custombuilt Homes Pty Ltd v Dowell & Anor[2005] WASC 25. Master Sanderson was dealing with an application to set aside a statutory demand that the Dowells had served on Custombuilt. The sum demanded was the taxed costs allowed on the Supreme Court appeal and cross-appeal. The factual history set out by Master Sanderson is a convenient summary for present purposes (pars [2] to [12]):
"The facts giving rise to the demand can be summarised in this way. The applicant conducts the business of home building, renovations, extensions and small residential unit developments. Prior to 1 July 1996 the directors and shareholders of the plaintiff were Gary and Gloria Green. They each held 40,000 shares in the plaintiff. The first-named defendant was a contractor who undertook certain work for the plaintiff. After some negotiation the defendants acquired an interest in, and became directors of, the plaintiff.
During 1999 the defendants decided to leave the business. Negotiations took place. These negotiations were directed at what needed to be done to bring about this separation. Unhappily, the negotiations did not settle all issues to the satisfaction of the parties. The present plaintiff issued proceedings in the District Court. The matter came on for trial before her Honour Judge French on 10 March 2003. On 30 May 2003 her Honour delivered judgment: Custombuilt Homes Pty Ltd v Dowell & Anor[2003] WADC 121. Her Honour summarises the dispute between the parties in the following way:
'… It was agreed that on the defendants leaving they would "take" and operate the business of Hills Siteworks including the earthmoving machinery and the Greens would retain the business of Custombuilt Homes operated through the plaintiff company. In addition, the defendants would relinquish any interest in a separate entity called Araluen Building Design Services Pty Ltd. This company had been established to operate a single project in relation to a housing estate in Araluen with Gary Green and the first defendant as the two shareholders and directors. These arrangements were put in place on or about 30 June 1999. The defendants resigned as directors and transferred their shares from the plaintiff and Araluen Building Design Services. The first defendant ceased to work at the plaintiff's premises and started to operate the business of Hills Siteworks independently. Machinery that required a motor vehicle licence was transferred into his name. A notice was compiled and sent to the plaintiff's clients advising of the separation in terms that reflected the arrangement that the Greens retained the home building business operated by the plaintiff with the Dowells independently operating the business conducted under the name of Hills Siteworks. Clients were directed to Gary Green for Custombuilt Homes matters and to Ashley Dowell for Hills Siteworks matters.
The plaintiff claims that these arrangements were part of a contract entered into between the plaintiff and the defendants that included the above arrangements and also provided for a financial reckoning arrived at by balancing out respective financial responsibilities to the plaintiff and arising out of the defendants' decision to terminate the joint working relationship they had had with the Greens and go their separate ways. It is claimed that the defendants have breached that contract and moneys due and owing under the terms of that contract have not been paid.
The defendants claim that there was not a concluded contract but a long period of negotiation between the parties as to the final balance that has not resulted in any agreement. There is no dispute that no moneys have been paid either by the defendants or by the plaintiff or the Greens at any stage.'
It is important to note that in the District Court proceedings the present plaintiff's claim was formulated in a very direct fashion. It was said that a concluded agreement had been reached, that moneys were due and owing under that agreement and that they had not been paid. This fact - the direct nature of the plaintiff's claim in the District Court proceedings - is central to the resolution of this present application.
In the event, her Honour found that there was no agreement as pleaded by the plaintiffs. She did find that there was a collateral agreement pursuant to which the defendants owed the plaintiff $65,000. It is not relevant for present purposes to detail how her Honour reached that conclusion. It is to be noted that in the final paragraph of her judgment, her Honour said this:
'… The plaintiff has chosen to make its case solely on the alleged contract which I have found not to have been concluded between the parties with the exception of the purchase of the earthmoving equipment. The plaintiff could have sought alternative remedies, namely the repayment of the purchase price of the equipment and the amount of the outstanding loan account with the defendants irrespective of any contract between the parties. Although that may have elicited a defence by way of set-off or counterclaim it would have been a more straightforward way to proceed. There will be judgment for the plaintiff in the sum of $65,000.'
From this decision the present defendants appealed. They argued that her Honour fell into error in concluding the plaintiff was entitled to judgment for $65,000 pursuant to the collateral contract. The present plaintiff cross-appealed. It argued that her Honour fell into error in not concluding that there was any settled agreement between the parties. The present defendants' appeal succeeded. The Full Court ordered that the present plaintiff's claim be dismissed. The cross-appeal was dismissed. The present plaintiff was ordered to pay the present defendants' costs of the appeal. That is how the amount the subject of the statutory demand arises.
I will deal more fully with the reasons of the Full Court and its implications below. However, it is convenient at this point to set out what the plaintiff says are the offsetting claims. This can be done by referring to par 7 of Mr Green's affidavit. It is in the following terms:
'7. The Applicant has 3 offsetting claims against the Respondents comprising:
7.1 a claim for a full account of the benefits derived from certain items of plant and equipment taken by the Respondents from the Applicant to the value of $85,633 (including interest at the rate of 6% from 1 July 1999 to 14 October 2004):
7.2 a claim for the balance of an outstanding loan between Mr Dowell and the Applicant totalling $34,193 (including interest at the taxation statutory benchmark rate from 1 July 1996 to 14 October 2004);
7.3 a claim for the balance of outstanding loan advances made by the Applicant to the Respondents totalling $50,086 (including interest at the rate of 6% from 1 July 1999 to 14 October 2004).' "
I pause here to note that I will refer to these three claims as the "Offsetting Claims". Master Sanderson continued:
"At the hearing of this application it was not disputed by the defendants that these amounts were owing by the defendants to the plaintiff. I should hasten to say that no concession was made on this point - counsel indicated that if a claim by the plaintiffs were to proceed elsewhere, it would be argued that debits and credits needed to be taken into account which would reduce or perhaps eliminate any indebtedness of the defendants to the plaintiff. It was counsel's submission that whatever the merits of the offsetting claims, no action was available to the plaintiff to enforce these claims. That, it was said, was the consequence of the way in which the plaintiff had proceeded in the District Court.
In particular, counsel for the defendants relied upon the judgment of EM Heenan J in the Full Court. After determining that the appeal should succeed and the judgment of the trial Judge should be set aside, his Honour continued (at par 107):
'Nevertheless, the rights of the parties cannot simply be left on the basis that the appeal is allowed and the judgment in favour of the respondent in the District Court is set aside. If that were to be the extent of the order granted by this Court it would mean that, the final judgment between these parties had determined that there was no legally enforceable obligation upon the appellants to pay to the respondent the value of the benefit obtained by acquiring the machinery and equipment, or for the other benefits which they had taken under the overall tripartite agreement alleged, not merely by the respondent, but by the appellants themselves in their own pleading. A judgment dismissing the respondent's claim against the appellants would also result in the extinguishment of any claim based in unjust enrichment which the respondent may have against the appellants for the value of the machinery or for the other benefits derived under the arrangement. This is because the judgment dismissing the respondent's claim would give rise to a res judicata which would be a bar not only to the further pursuit of the cause of action relied upon by the respondent in the District Court, but to any other causes of action which the respondent could have asserted in those proceedings - Henderson v Henderson (1843) 3 Hare 100 [67 ER 313]; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 per Deane, Toohey and Gaudron JJ at 508 - 509. Such a result would leave the appellants in possession of the machinery and equipment, and the ownership of the business of Hills Siteworks, without any legal obligation to pay for them - a quite unacceptable situation.'
His Honour then went on to say that he would craft orders which allowed the present plaintiff to proceed in the District Court for claims that they may have against the present defendants consequent upon the dissolution of their business relationship. But no such orders were made. The other two members of the Court were of the view that the appropriate order was simply that the appeal be allowed, the judgment in the Court below be set aside and the present plaintiff's claim be dismissed. Wheeler J put the position as follows (at [56] - [57]):
'I should add that I have considered with care the draft reasons for decision of EM Heenan J. The orders proposed by his Honour appear to me to be a very attractive solution to the difficulty presented by this case. I do not take issue with any of the matters of law discussed by his Honour. However, I am unable to join in those orders because, in my view, the parties have made a deliberate decision to confine the issues in the trial and the appeal in such a way as to preclude the Court from dealing with those wider matters considered by his Honour.
During the course of the trial, her Honour noted that "despite what the pleading is saying" an issue which kept arising was "what the appropriate entitlements ought to be either in terms of an agreement between the parties or in some kind of objective estimate" (AB p 299). Her Honour appreciated, in my respectful view correctly, that that issue did not represent the way in which the parties were seeking to run their case. Neither party took issue with her Honour's suggestion that that matter was, strictly, irrelevant.'
In my view, it is an inevitable conclusion from the decision of the Full Court that it is not now open to the plaintiff to attempt to enforce any of the matters which it says are offsetting claims. On behalf of the plaintiff, it was submitted that such a conclusion was manifestly unjust and should not be countenanced. It seems to me to be, however, a natural consequence of the way in which the plaintiff's claim was run. It was further submitted that what was said by EM Heenan J in his judgment was obiter and it was open to the plaintiff to issue proceedings and deal with the res judicata issue in due course. With respect, it seems to me that the Full Court carefully considered the question and effectively shut out the plaintiff from agitating these claims. In my view, no other conclusion can be reached. Once what was said by EM Heenan J is put against what was said by Wheeler J, that is the end of the matter. Unfortunate though it may be, the plaintiff simply has nowhere to go."
Master Sanderson concluded that Custombuilt did not have an offsetting claim, and dismissed the application to set aside the statutory demand.
Custombuilt has commenced an appeal against the decision of Master Sanderson by Notice of Appeal dated 15 March 2005 (I will refer to this appeal as the "Second Full Court Appeal"). This appeal has not yet been listed for hearing.
Basis for the application
The power to make an order "suspending the enforcement of all or part of [a] judgment" is found in CJEA s 15. By CJEA s 15 (3), when hearing an application for suspension order "the court may only make such an order if there are special circumstances that justify doing so". By CJEA s 15 (4), "a suspension order may be made for any period (including an indefinite period) and may be made on terms as to costs or otherwise".
CJEA s15 contemplates a two stage process. The first stage is to determine whether the applicant has cleared the hurdle of establishing that there are "special circumstances". If this is established, then the power, and the thus discretion, of the Court is enlivened. This is the second stage. This two stage approach mirrors the position in relation to stays of execution under both the inherent jurisdiction of the Court and Order 47 rule 13 of the Rules of the Supreme Court 1971: see generally Hamersely Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 81, at 91, 94. By parity of reasoning to stay of execution cases, in this second stage, the court will consider issues like the prospects of success of an appeal where this is relied on as a basis for a suspension order. The court will also consider hardship and the balance of convenience, encompassing the same sorts of considerations as will arise where the court considers the grant of an interlocutory injunction: Hamersley Iron, 20 WAR, at 91, 94.
The explanatory memorandum to the CJEA contains the following general comment about the power in s 15 (at p 5-6):
"Circumstances may arise where enforcement action has been commenced and it is just that the enforcement be suspended. An example is where judgment was obtained by default in that the defendant did not respond to a summons but there is an explanation for the default such as hospitalisation. Another example could be where the debtor was impecunious."
The comment about the suspension order being made where it is "just" echoes the references cited above that the discretionary considerations in the context of a stay of execution are similar to those considered by a court on an interlocutory injunction application. In the injunction context, the key discretionary consideration is sometimes expressed as the balance of the risk of doing an injustice: Cayne v Global Natural Resources plc [1984] 1 All ER 225, at 237; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, at 536.
The requirement that there be "special circumstances" is one way in which the test is expressed for a stay of execution under either the inherent jurisdiction of a court or under the rules relating to stays of execution: see TheCommissioner of Taxation for the Commonwealth of Australia v The Myer Emporium Limited (1986) 160 CLR 220, at 222-223. In Hamersely Iron, Ipp J made the following comments about the circumstances in which a stay of execution would be granted (20 WAR, at 88):
"The repeated admonition from the various Justices of the High Court who have expressed views on the issues is that a stay is an extraordinary remedy and will only be granted in special circumstances. The fact that an appeal may be arguable, or that a party to litigation may suffer no prejudice if the stay is granted, or that the application for special leave is made in 'good faith', or that expeditious steps have been taken and the special leave application will be heard in the near future, do not, even when taken together, amount to special circumstances."
Although his Honour's comments were made in the context of a stay pending an application for special leave to the High Court, the general tenor of what amounts to “special circumstances” is apposite for present purposes.
Submissions
Counsel for Custombuilt submitted that there are two reasons why there are "special circumstances" such as would justify a suspension order in the present case. The first reason is that there are offsetting claims in excess of the amount of the judgment debt. For present purposes, the offsetting claims are those that I have identified as the "Offsetting Claims" in the passaged quoted above from judgment of Master Sanderson. The second reason is that the judgment creditors, the Dowells, are impecunious. By analogy to cases dealing with stays of execution pending the outcome of an appeal, this should be a determinative factor in making the suspension order. The appeal relied on is the Second Full Court Appeal.
Counsel for the Dowells submitted that the as a result of the Full Court Decision, Custombuilt is effectively unable to enforce the Offsetting Claims. In addition, Counsel took the same position as regards the Offsetting Claims as it did before Master Sanderson: the existence of the claims is not disputed (though not conceded), but if the claims were to proceed elsewhere, it would be argued that debits and credits needed to be taken into account which would reduce or perhaps eliminate any indebtedness. Counsel went on to submit that the financial position of the Dowells (which was not disputed factually) is not relevant for present purposes as the stay cases referred to by Custombuilt have no application.
It is thus convenient to deal with the matters raised under three heads:
· Offsetting claims
· Financial position of the Dowells
· "Special circumstances" generally
Offsetting claims
The relevant issue for me to determine is whether the existence of the Offsetting Claims, either alone or with other facts, constitutes "special circumstances" such as would warrant a suspension order being made. Custombuilt seeks suspension of enforcement of the judgment debt in order to allow it to pursue the Offsetting Claims, or at least to await the outcome of the Second Full Court Appeal.
In light of the Full Court Decision and the decision of Master Sanderson, the first issue to be considered is whether Custombuilt can, as a matter of law, pursue the Offsetting Claims. Master Sanderson held that it could not, following the Full Court Decision. Counsel for Custombuilt submitted that, although there was some consideration by the Full Court of the issue of whether or not as a matter of the law Custombuilt could pursue the Offsetting Claims, this point was ultimately not decided. Counsel further submits that in the Second Full Court Appeal, the Full Court will have to deal directly with the issue of whether or not Custombuilt is prevented by the doctrine of res judicata or some form of estoppel from pursuing the Offsetting Claims. In those circumstances the District Court should effectively await the determination of the Second Full Court Appeal before allowing the Dowells to proceed with enforcement of their judgment.
In response, counsel for the Dowells says that the Full Court has already considered this issue, and has concluded that it is now no longer open for Custombuilt to pursue the Offsetting Claims. In effect, counsel for the Dowells submits that I should come to the same conclusion that Master Sanderson did, namely that "the Full Court carefully considered the question and effectively shut out the plaintiff from agitating these claims" (at par 11).
I respectfully agree with the interpretation placed on the Full Court Decision by Master Sanderson. The Full Court Decision effectively means that Custombuilt is not able to pursue the Offsetting Claims.
Even if I were of the view that the Full Court had left open the possibility of Custombuilt pursuing the Offsetting Claims, the fact that Custombuilt has not done so to date seems to me to be a consideration that must be taken into account in considering whether "special circumstances" exist such as to warrant the making of a suspension order. It has been open to Custombuilt since August 2004, when the decision of the Full Court was given, to commence a separate action in relation to the Offsetting Claims. No such action has been commenced. Counsel for Custombuilt states that it has decided not to do so as the issue of whether it is able to pursue the Offsetting Claims is effectively being determined in the Second Full Court Appeal. Be that as it may, the fact remains that Custombuilt has made a conscious choice not to commence a separate action to enforce the Offsetting Claims.
Financial position of the Dowells
The second factor relied upon by the counsel for Custombuilt is the fact that the Dowells are impecunious. The factual basis for this submission is set out in the two affidavits sworn by Ms Hughes. Counsel for the Dowells did not contest the fact that they were impecunious.
The relevance of the financial status of the judgment creditor stems from the line of authorities dealing with stays of execution. The principles are conveniently summarised in the decision of Dawson J in Myer Emporium, in the following terms (160 CLR 220, at pp 222-223):
"It is well established by authority that the discretion which it confers to order a stay of proceedings is to only be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal… Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, is successful, from being nugatory… Generally that will occur when, because of the respondent's financial stake, there is no reasonable prospect of recovering monies paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed…"
Counsel for Custombuilt submits that this situation is relevantly analogous to that to the general proposition outlined in the passage from the decision of Dawson J. There is an appeal pending in relation to the dispute as a whole, namely the Second Full Court Appeal. If that appeal is resolved successfully in favour of Custombuilt, then it may be prejudiced by having paid money to the Dowells under the judgment debt.
To my mind, however, the situation is more complex than that, and the analogy falls away. If Custombuilt is successful in the Second Full Court Appeal, all that will occur is the statutory demand for the taxed costs of the Supreme Court appeal will be set aside. The Second Full Court Appeal does not affect the validity of the underlying judgment debt in the Supreme Court, namely the taxed costs. More importantly, it has no bearing whatsoever on the validity of judgment debt in the District Court, namely the costs order the subject of the present means enquiry application.
In order for Custombuilt to be in a position where the Dowells owe it money under the Offsetting Claims, the following needs to occur:
(a) Custombuilt, and probably the Greens, need to sue the Dowells;
(b)the action needs to survive a summary judgment application by the Dowells based on the estoppel issues (although it is possible the Second Full Court Appeal may determine this issue);
(c) Custombuilt, and or the Greens, need to establish their entitlement to an award of damages from the Dowells;
(d)the amount of the damages awarded needs to be in excess of any cross-claims or setoffs raised by the Dowells in that subsequent action;
(e)the amount of any net award of damages needs to be in excess of the existing judgment debts for costs in the District Court and Full Court; and
(f)two to three, or possibly more, years in the future once the action is finalised and judgment given, the Dowells financial position is such that they will not be able to satisfy the judgment debt.
On that analysis, this is a very different scenario than that contemplated by Dawson J. In his Honour's scenario, a judgment creditor is paid a sum of money, an Appeal Court finds that the judgment creditor should not have been paid that sum of money, and the judgment creditor has to refund the sum of money paid.
On that basis, the principles outlined by Dawson J have no application to this case. The case is not one in which the appeal will be rendered futile or nugatory unless a stay is granted: see generally, Hamersely Iron, 20 WAR, at 91.
More significantly, I am not persuaded that the Dowells financial position, assuming they are impecunious, is a factor which, either alone or with other factors, constitutes "special circumstances". It amounts to no more than a submission that, if at some stage in the future the Dowells become liable to pay an amount to Custombuilt as a result of a separate legal action, they might have spent the proceeds of the judgment debt received, and have no money available to satisfy the future liability.
"Special circumstances" generally
There then remains the question as to whether there are any other reasons suggesting "special circumstances" exist that justify the making of a suspension order.
One scenario I have considered is whether the court should make an order suspending enforcement of the judgment debt pending the outcome of the Second Full Court Appeal. I have also considered a scenario in which Custombuilt would pay the amount of the judgment debt into court as a condition of an order suspending enforcement of the judgment debt pending the outcome of the Second Full Court Appeal.
Each of these scenarios is predicated on Custombuilt first establishing that "special circumstances" exist. They are in the nature of considerations that might be taken into account in the second stage described above, where the Court looks to balance the risk of doing an injustice.
The onus is on Custombuilt to satisfy the court that it is appropriate to make a suspension order. In order to do so, it must establish the "special circumstances" exist. For the reasons set out above, Custombuilt has failed to discharge that onus.
The members of the Full Court gave careful consideration to the issue of whether or not Custombuilt should be able to litigate the Offsetting Claims in the current action. The majority, Murray and Wheeler JJ, made orders bringing finality to the action. E M Heenan J, in the minority on the form of the final order, favoured orders allowing Custombuilt to re-litigate the District Court action including the Offsetting Claims. In perhaps the pivotal paragraph in the decision of Wheeler J, her Honour stated the following (par 56):
"I should add that I have considered with care the draft reasons for decision of E M Heenan J. The orders proposed by his Honour appear to me to be a very attractive solution to the difficulty presented by this case. I do not take issue with any of the matters of law discussed by his Honour. However, I am unable to join in those orders because in my view, the parties have made a deliberate decision to confine the issues in the trial and the appeal in such a way as to preclude the court from dealing with those wider matters considered by his honour".
These findings of Wheeler J are apposite to the present application. The parties have made a deliberate decision to conduct the trial in a particular manner. The Full Court has deprived Custombuilt of the opportunity to depart from that approach, and include the Offsetting Claims in the present action. Consistent with the Full Court Decision, this Court should not, in my view, allow Custombuilt to in effect include the Offsetting Claims in the current action by means of a suspension order.
Accordingly, the application for a suspension order under CJEA s 15 is dismissed.
I will hear counsel on the question of costs and the question of the appropriate enforcement orders to be made in the means enquiry.
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