David Jones Limited v Perpetual Limited - [2008] VSC 61

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL LIST

F6074
No. 2013 of 2007

DAVID JONES LIMITED	Plaintiff
v
PERPETUAL LIMITED & OTHERS	Defendants

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2008
DATE OF RULING:	11 March 2008
MEDIUM NEUTRAL CITATION:	[2008] VSC 61

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Practice and procedure – Application to split trial – Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Rule 47.04

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Myers QC Mr D Star	Middletons
For the Defendants	Mr J Santamaria QC Mr R Peters	Clayton Utz

HER HONOUR:

On 15 February 2008, I made certain orders at a directions hearing in this proceeding, in particular, orders relating to the splitting of the trial. These are the reasons for that decision.

The defendants are the legal and/or beneficial owners of the Chadstone Shopping Centre. The plaintiff operates a well-known store at the shopping centre. This proceeding concerns a dispute about the outgoings payable under the current store lease, which is dated 5 February 2001.

The background to the 15 February orders

Since mid-2007, the defendants have been seeking to have the trial of this proceeding split in some way. At a directions hearing on 31 August 2007, they indicated that they proposed to ask the court to determine 11 preliminary questions as to whether the lease contained certain express or implied terms alleged by the plaintiff.[1] On that occasion, I indicated that I would not consider any application for the determination of preliminary questions until after the pleadings had closed. I made various orders for the delivery of an amended statement of claim and subsequent pleadings.
[1]The questions are set out in the schedule to a letter from the defendants’ solicitors to the plaintiff’s solicitors, dated 26 July 2007.

By summons dated 8 October 2007, the defendants sought the preliminary determination of the 11 questions which had previously been foreshadowed. An additional construction question was subsequently added in the defendants’ written submissions. The defendants said that the only evidence upon which they would seek to rely at the hearing of the preliminary questions was the lease itself. The plaintiff opposed the application. In particular, the plaintiff said that the proposed questions could not be considered in isolation from the background facts, and it would want to lead “a great deal of matrix evidence”. It baldly asserted that there would be a substantial overlap between that evidence and the remainder of the evidence at trial, so that there would not be “any conceivable saving of costs or time” by determining preliminary questions.

At the hearing of that summons on 12 October 2007, I noted that I did not have evidence from either side as to how many and which witnesses might be called in relation to the various issues, and how much time might be saved by proceeding down the proposed preliminary questions path. I made directions for the exchange of categories of discoverable…

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.

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Details

Case: [2008] VSC 61
Decision Date: 11 March 2008

CaseChat Overview and Summary

David Jones Limited sought an order to split the trial of its claim against Perpetual Limited into two parts. The claim arose from a dispute over the terms of a loan agreement. The Supreme Court of Victoria heard the application. The legal issue before the court was whether the application to split the trial was appropriate under the Supreme Court (General Civil Procedure) Rules 2005 (Vic). Specifically, the court had to consider whether Rule 47.04 provided sufficient grounds for granting the application.

The court examined the relevant rule and the principles governing applications to split trials. It noted that while the rule allowed for splitting a trial, it did so only in exceptional circumstances. The court assessed whether the circumstances of this case warranted such an exceptional order. It found that the application did not meet the stringent criteria for a split trial, as the issues were closely interrelated and could be more efficiently resolved in a single trial. Consequently, the court dismissed the application.

As a result, the trial proceeded without the requested split. The decision emphasised the importance of demonstrating exceptional circumstances when seeking to divide a trial into separate parts. The court's ruling underscored the need for careful consideration of the relevant rules and the broader context of the litigation. The final outcome was that the application to split the trial was denied, and the case would be heard as a whole.

Orders