Ellison v Marshall [No 2] - [2016] WASC 333

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ELLISON -v- MARSHALL [No 2] [2016] WASC 333

CORAM: KENNETH MARTIN J

HEARD: 14 SEPTEMBER 2016

DELIVERED : 14 OCTOBER 2016

FILE NO/S: CIV 3017 of 2015

BETWEEN: TIA ELLISON
Plaintiff
AND
DENISTON CLIVE MARSHALL
WENDY DOROTHY MARSHALL
First Defendants
PETER MAXWELL LAURANCE
Second Defendant
JEFFREY CHARLES BURCH
MARIANNE AMY BURCH
Third Defendants

Catchwords:

Practice and procedure - Extension of time - Rules of the Supreme Court 1971 (WA) O 16 r 1(1) - Application for leave to apply out of time for defendant's summary judgment - Case management directions for substantive exchanges of evidence for trial complied with - Legal issue arising as to jurisdiction for application - Meaning of word 'modify' or 'modification' of existing easement favouring the plaintiff's land with right of carriage across first defendants' land - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), s 129C

Result:

Application for leave refused

Category: B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
First Defendants           :     Ms A Richmond-Scott
Second Defendant         :     Mr G R Ritter QC
Third Defendants          :     Mr G R Ritter QC

Solicitors:

Plaintiff:     Bennett + Co
First Defendants           :     Minter Ellison
Second Defendant         :     HopgoodGanim
Third Defendants          :     HopgoodGanim

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

City of Belmont v Saldanha [2016] WASC 37
Effeney v Millar Investments Pty Ltd [2011] NSWSC 708
Ellison v Marshall [2016] WASC 122
Hoy v Allerton [2001] QSC 440; (2002) Q ConvR 54‑559
Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260
Markos v O R Autor Pty Ltd [2007] NSWSC 810
Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35
Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187
KENNETH MARTIN J:

Introduction

I am dealing with the application made by all defendants by chamber summons of 5 September 2016, seeking leave to apply out of time for a defendant's summary judgment under O 16 r 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC) - dismissing the plaintiff's action under her amended originating summons filed 19 May 2016.
The present application is opposed by the plaintiff.
In short, the defendants contend that, although they are out of time in advancing such an application, the delay is not all that significant and is explicable. Moreover, they say that it is in the interests of justice for them to be presently granted leave, on a basis that they have 'strong prospects' of establishing that, in effect, the present action brought by the plaintiff seeking a modification to an easement that benefits her land at 41A Saunders Street, Mosman Park, is jurisdictionally misconceived.
The defendants, in effect, wish to have leave to contend that there is no arguable basis for this court to grant the relief the plaintiff pursues by way of an asserted modification to easement E500174E - delivering carriageway rights which benefit her land and which burden the neighbouring land owned by the first defendants (the Marshalls).
The jurisdictional deficiency argument of law which all the defendants now wish to run, sooner rather than later by a defendant's summary judgment application, turns on the correct meaning of the words 'modify' or 'modification' ‑ as those words are found used respectively in s 129C(1) and then in s 129C(1)(c) of the Transfer of Land Act 1893 (WA).

Background

The ultimate relief as sought from the face of Mrs Ellison's originating summons is:
An order pursuant to section 129C of the Transfer of Land Act, 1893 modifying easement E500174E … such modification to be in accordance with the plan annexed to the affidavit of the plaintiff filed herewith (my emphasis in bold).
Mrs Ellison's affidavit of 18 December 2015 accompanied her originating summons of that same date. However, its content did not include, at least upon my examination of it, any plan showing in clear terms what she was actually seeking by way of a proposed modification to easement E500174E which benefits her land. Mrs Ellison only said in that affidavit (at subpar 13.4):
For my part, although my property enjoys the benefit of the easement for the full length of what appears to be the private road, the relevant easement the subject of the within application (being the small purple section giving access to my garage) is the only means by which I can presently now access my property.
Mrs Ellison's affidavit continued at par 14 to explain her future intentions concerning applying for permission to the Town of Mosman Park, seeking to demolish certain improvements to her property which she considered unsuitable and her proposal to rebuild in a manner that 'eliminates the pool and provides access to the rear of my property'. She continued:
To do this, I seek modification of the easement to allow me to exercise the benefit of the right of way easements by modifying the easement allowing me to cross over the 'battle‑axe' portion of Mr and Mrs Marshall's property. The modification is to extend this easement to the rear of my property.
My reasons in Ellison v Marshall [2016] WASC 122 (delivered 22 April 2016) provide orientation details in terms of relevant properties at Saunders Street, Mosman Park. Those reasons were delivered in the context of that opposed application by two neighbours in Saunders Street who are now the second and third defendants in the action (Mr Peter Laurance and Mr and Mrs Burch), as owners of two properties at the bottom end of the cul‑de‑sac, located alongside the Marshalls' property at 41 Saunders Street (Mr Laurance at 39 and Mr and Mrs Burch at 37 Saunders Street) and who wished to be defendant participants in the action to be heard in opposition.
After I had issued orders allowing Mr Laurance and Mr and Mrs Burch to participate as parties, I then issued some further directions on 26 May 2016 for the programming of the present action towards trial. Two issues of significance were addressed by those directions. First, that greater precision was called for in terms of Mrs Ellison precisely identifying the character of the actual modifications she wanted under her present application to modify easement E500174E. Consequently, I ordered that these be filed and served by affidavit on the plaintiff's behalf containing a drawing or sketch outlining the precise nature, extent and location of the proposed modification to this easement.
The second issue addressed by the directions was to set a time for the defendants to file and serve their affidavits of evidence on which they wished to rely at trial in their opposition to the easement modification application.
There followed some consensual timing adjustments to those directions. In due course, however, there was filed on behalf of the plaintiff the affidavit of Andrew David Boughton, affirmed 17 June 2016.
Mr Boughton is an architect. His affidavit said that it was affirmed 'in support of the Plaintiff's application to modify easement E500174E' (par 2). Exhibited to Mr Boughton's affidavit are two A3 size survey drawings prepared by NJP Survey Consultants, at his request. The first drawing (exhibit 1) shows the 'existing easements over the driveway running alongside the Plaintiff's property, namely 41A Saunders Street, Mosman Park which I know to be owned by the First Defendants [the Marshalls] of 41 Saunders Street, Mosman Park'. The second A3 survey drawing exhibited to Mr Boughton's affidavit was another survey drawing by NJP Survey Consultants prepared at his request, this time showing 'the Plaintiff's proposed modification to easement E500174E'.
I shall append reduced copies of those two A3 sketches to these reasons as Annexures A and B respectively to these reasons. What is presently relevant is the visual comparison which can be made. Annexure A shows in pink the existing situation as regards easement E500174E benefiting Mrs Ellison's land (41A Saunders Street) (seen represented by the relatively small pink area, at the Saunders Street end of Annexure A). This location is in the region of the existing driveway area of 41A Saunders Street ‑ in effect allowing a traversing by right of carriage across this relatively small section of what is part of a 'battle axe' strip of land owned by the Marshalls. (For the sake of clarity, the pink area has been bordered with a thick green border to highlight the relevant area.)
The second survey sketch, from the Boughton affidavit (Annexure B) shows the same locations. However, this sketch illustrates the proposed modification sought to be made by Mrs Ellison to easement E500174E. This can be seen on Annexure B as a much greater area coloured pink. It can be seen to encompass not only all of the area formerly shaded pink on Annexure A, but now the pink area also ‑ and, significantly ‑ extends to take in a greater area, passing along the boundary side of 41A Saunders Street and extending downward to a boundary line abutting the Marshalls' property at 41 Saunders Street, at the bottom end of the cul‑de‑sac.

The legal point sought to be raised by obtaining leave out of time by the defendants on a defendant's summary judgment application

The legal argument which the defendants wish to pursue at an early point and before a trial via a defendant's summary judgment application would, in effect, seek to contend that what is to be seen in pink on Annexure B as is proposed (viewed in a juxtaposition of the two sketches concerning easement E500174E), is not even arguably capable of being characterised in law as any kind of 'modification' to easement E500174E, currently benefiting 41A Saunders Street. They submit that it is, in truth, a substantial augmentation to that easement for the land that benefits from it, which cannot be considered to be a modification.
The defendants' proposed legal argument evolves into a sharper focus once the precise terms of s 129C(1) of the Transfer of Land Act are examined.

Section 129C(1)(c) of the Transfer of Land Act

During the course of arguments (see ts 69 ‑ 77) it became apparent that the invoked basis for Mrs Ellison's application seeking modification, is the jurisdiction of this court to modify an easement, arising under the circumstances identified via s 129(1)(c) of the Transfer of Land Act (although this is not actually discernible from the face of Mrs Ellison's amended originating summons, which refers only to s 129C).
Relevantly to the present application, the reduced components of s 129C(1)(c) that seem to be pertinent, provide:
(1)…where land under this Act is subject to an easement … as to the user thereof …, the court or a judge may from time to time on the application of any person interested in the land burdened or benefited … by the easement or restriction, by order wholly or partially … modify the easement … upon being satisfied ‑
(a)…
(b)…
(c)that the proposed … modification will not substantially injure the persons entitled to the easement …
(my emphasis in bold)
The defendants seek leave to argue before any trial is held that what is being proposed by Mrs Ellison, now graphically illustrated by a comparison of the respective pink areas as seen in Annexures A and B, simply cannot be characterised in law as any genre of 'modification' to easement E500174E, benefiting Mrs Ellison's land at 41A Saunders Street and correlatively burdening the Marshalls' land at 41 Saunders Street.

Arguments for and against leave to move for a defendant's summary judgment out of time

I should record that the defendants' submissions in support of the present application seek to invoke an alternative reliance on other rules of court, allowing them to advance in isolation their proposed submission of law, concerning the scope of the true meaning of the words 'modify' and 'modification' as used in s 129C(1)(c) towards the present application of the plaintiff. The defendants alternatively invoke RSC O 58 r 29 and, additionally, the inherent jurisdiction of the court. But, on my assessment, those extra sources do not advance matters much, if at all, beyond the same considerations currently raised by them in seeking leave to bring the defendants' present out of time summary judgment application by leave under RSC O 16 r 1(1).
Under the written submissions filed on behalf of the second and third defendants of 12 September 2016, they contend:
11.2The point involves essentially a question of law, and this should be dealt with at an early stage, since that would otherwise be dealt with separately, as a preliminary point at or before trial in any event. As a point of law and jurisdiction is involved, the Court should decide the question at an early stage.
11.3The point, being one of law, does not require more than a consideration of the plaintiff's material. It does not involve examination of the affidavits filed by the defendants beyond looking at the title details or require cross‑examination. The time involved in dealing with all the evidence at a trial and with cross‑examination of witnesses would be avoided.
The Marshalls, as first defendants, independently support that position. They also have filed written submissions of 12 September 2016, in support of a grant of leave out of time, asking for the legal point to be determined at an early stage, before a trial.
As evidence, the second and third defendants filed the affidavit of Andrew Vinciullo, sworn 5 September 2016, in support of the present application for leave to bring the application out of time. The Marshalls have similarly relied upon an affidavit from their solicitor Ms Richmond‑Scott, sworn 5 September 2016, seeking leave out of time.
Underlying merit being a highly relevant consideration on an application such as this, all defendants, by their written submissions, which were then augmented by the oral submissions of senior counsel at the hearing of the application seeking leave out of time, invoke ostensible support for the merit of their legal argument from first instance decisions of this court and elsewhere, concerning their advocated interpretation of the words 'modify', 'modification' or 'modified' used within s 129C(1), to present circumstances. The case authorities relied upon have been collected in a letter from the second and third defendants' solicitors, sent to the plaintiff's solicitors on 26 July 2016, which is found appended as AVV1 to Mr Vinciullo's affidavit.
Legal authorities collected at section 3 of that correspondence include the decision of Pritchard J in this court in Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35. That was a case concerning an application to seek a modification of a restrictive covenant, not an easement. Nevertheless, by parity of reasoning, reliance is placed by the defendants upon her Honour's observations in that overall context of considering the application of s 129C(1). Pritchard J observed at [83]:
What is sought in this case is the modification of the Restrictive Covenant. The term 'modify' in this context has been construed to mean 'limit or restrain' (Hoy v Allerton (2002) Q ConvR 54‑559 [29] ‑ [30] per (Atkinson J)) and does not permit changing, amending or varying a covenant. So, for example, an equivalent power has been exercised to permit the construction of a building which would otherwise breach a restrictive covenant (see, for example, Re Lewis [1959] NZLR 1040).
A Queensland decision referred to by her Honour in the above passage, Hoy v Allerton [2001] QSC 440; (2002) Q ConvR 54‑559, was more factually akin to the present case as regards an easement. It concerned an easement modification application, advanced pursuant to s 181 of the Property Law Act 1974 (Qld). The facts display what was, in the end, an unsuccessful application to modify that easement ‑ seeking to draw water from a bore on three days of the week. Atkinson J said at [29]:
Section 181 of the Property Law Act does not provide for an easement to be modified unless to do so would not substantially injure the persons entitled to the benefit of the present restriction. The power given to the court is to 'modify or wholly or partially extinguish the easement'. The word 'modify' has as its primary meaning to 'limit or restrain'. In my view, the court's power to modify an easement is a power to limit or restrain rights given under an easement. The phrase is taken from s 84 of the Law of Property Act 1925 (UK) drafted at a time which suggests that it should be understood in this precise sense. The word 'modify' does not have the same meaning as change, amend or vary. (my emphasis)
Her Honour's reasons continued at [30]. But on my reading at this point they are addressing a further and distinct issue, namely a required factual assessment upon whether or not such a proposed change would 'substantially injure' persons entitled to the benefit of that easement. Atkinson J at this juncture in her reasons was then working on an assumed hypothesis that the application to vary the easement was within the jurisdictional scope of an application to modify. Upon that hypothesis her Honour then observed:
Even if it is given a wider, less precise meaning, the court would be reluctant to amend an easement in a case such as this, which would increase the rights granted to the dominant tenement. To do so would mean that the court would impose a duty on the servient tenement to provide equipment for the use of the dominant tenement and to impose a regime of sharing resources which would be onerous and difficult to enforce while at the same time proving likely to deplete the very resource which the parties would be forced to share [30].
In City of Belmont v Saldanha [2016] WASC 37 (delivered 11 February 2016), Allanson J made passing reference to Pritchard J's decision in Panton at [97]. As I read his Honour's observations commencing at [88] under a heading, 'Section 129C', the thrust of his Honour's observations was there directed towards the distinct legislative terminology of 'abandonment or obsolescence' concerning an easement - evaluations not presently relevant to my task. However, Allanson J later in those reasons referred again to Panton at [103], in a context of noting the ultimate discretionary power of the court concerning an application made under s 129C(1)(c). Again, such considerations are not presently material to what is my examination of a more limited jurisdictional issue of law concerning the true scope of the words 'modify' and 'modification', used within s 129C(1)(c) to the presenting facts of Mrs Ellison's application.
The defendants also refer me to reasons of Ward J (as she then was) in Effeney v Millar Investments Pty Ltd [2011] NSWSC 708, concerning the application for extinguishment or modification of an easement benefiting a local council. Her Honour there said at [240], by reference to locally applicable New South Wales legislation:
However, I accept that the statutory power to modify an easement does not extend to moving it to a new route on the servient tenement [her Honour referring to two decisions in support of that proposition, namely Markos v O R Autor Pty Ltd [2007] NSWSC 810 [117] and Tujilo v Watts [2005] NSWSC 209 [52]].
Turning then to examine one of the two decisions mentioned by Ward J, in Markos v O R Autor Pty Ltd [2007] NSWSC 810, Austin J reviewed many case authorities in this area, commencing at [108]. I note in particular his Honour's observations at [113], then further remarks at [117]. His Honour's conclusion, reached in the end by reference to the terms of s 89(1)(c) of the Conveyancing Act 1919 (NSW), was in these terms:
My conclusion is that the court cannot, under s 89(1)(c), make an order expanding a right of way or changing it to the benefit of the dominant owner. By application of that general proposition, the court cannot make an order changing the right of way in the present case into a right of fire egress over a smaller part of the passageway [121]. (my emphasis)

It is of course the case that none of those first instance decisions are, strictly speaking, binding upon me, as regards the isolated legal issue which is now sought to be raised by the defendants ‑ concerning the correct meaning and scope of s 129C(1)(c) for the words 'modify' or 'modification'. Nonetheless, it is the case that the defendants would appear, at least at first blush, to have assembled a respectable body of case law advancing their advocated legal interpretation towards the words 'modify' and 'modification'. That respectable position is relevant to my assessment of the 'merits' of the legal point that is sought to be raised on an application such as this, if time is to be extended by a grant of leave. The potential merits of the underlying argument of the defendants are one highly pertinent factor to be weighed.
I would also observe, prima facie only at this time, that the substantive application, as advanced by Mrs Ellison, seeking to modify easement E700154E looks to grate somewhat as a matter of concept against the words of s 129C(1)(c). Subsection (c) calls for an assessment on whether 'the proposed ... modification will not substantially injure the persons entitled to the easement …'. Here, the only relevant person 'entitled' (ie benefited) is Mrs Ellison. Any assessment process directed only at evaluating substantial injury to Mrs Ellison or a person entitled through her to the benefit of their easement, would on the face of it present as, prima facie, incongruous. Hypothetically and conversely, an application by the Marshalls as the owners of the servient land (41 Saunders Street) (that is, as owners of the land currently burdened by easement E500174E), seeking for instance to truncate the scope of the easement rights presently held by the dominant tenement (ie by Mrs Ellison's land) ‑ would present as a scenario of application that would be more understandable, as a type of modification application then within the parameters of s 129C(1)(c). But that is not this case.

Plaintiffs' opposition

Opposing the present application for leave to advance a defendant's summary judgment application out of time, Mrs Ellison, through her legal representatives, has filed written submissions together with an accompanying list of case authorities of 13 September 2016, which I have considered.
Issues are raised by the plaintiff concerning the asserted lateness of the defendants' present application ‑ in particular, that it is made at a time that is well after the defendants have now filed and served a number of opposing affidavits ‑ which seek to substantively engage against and to resist Mrs Ellison's application at a trial, as a matter of merit (in compliance with par 2 of my directions of 26 May 2016).
I was told during verbal arguments by Mr Bennett, counsel for Mrs Ellison, that the whole case is now essentially ready to proceed for what ostensibly presents as a two‑day trial, subject only to some minor reply materials that Mrs Ellison's representatives foreshadow filing imminently, to respond to some aspects of evidence in the defendants' trial affidavits.
Mr Bennett then draws my attention to the many case authorities counselling extreme levels of caution that are to be applied by a court, in a context of upholding a summary judgment application - where essentially the focus is upon whether an overwhelming and unarguable position has been established by the party seeking a judgment without trial. Hence, the underlying circumstances need to show a pointlessness in proceeding to a trial that would correlatively carry wholly unnecessary delay, cost and inconvenience. Mr Bennett contends that threshold is not met here.
Mr Bennett, correctly, points out that the present is not a scenario of the court being asked to finally determine an isolated and convenient preliminary issue of law once and for all ‑ where the underlying facts are agreed between the parties. He also correctly submits that if leave were to be granted, a summary judgment application advanced by the defendants would be capable of being defeated by merely raising a respectable counterargument, such as one which, hypothetically, called for some factual determination within the context of a trial. None of those principles are controversial.
Mr Bennett also points out, as his most persuasive consideration on my assessment, that the present action has effectively progressed, in terms of overall preparation, up to a point where it is all but ready for a final substantive determination at a two‑day trial, subject to the plaintiff completing some minor responsive evidence matters. Hence, it is put that in the prevailing circumstances it would now, from an overall case management perspective, be potentially wasteful to direct the parties down a summary judgment application path, given the already heavy investment to date in the substantive trial preparations which are almost completed. It is said that it is a more sensible and efficient use of resources that the action proceed to a substantive determination of all issues upon a final basis, rather than being potentially and wastefully diverted from the objective of achieving finality, at this now too late a point. This submission in the end is powerful.
I repeat that I have also not ignored the alternative bases for the present application raised by the defendants. But on my assessment, they do not advance matters beyond present considerations.

End determination: leave refused to bring a defendant's summary judgment application out of time

In the first place, I was not influenced much, if at all, by considerations of alleged delay that have been raised against the present application to allow a defendant's summary judgment application out of time. On my assessment, those temporal considerations are largely explicable, rendering reasonable allowances for the precise ramifications and nuances of the easement modification application being properly appreciated by the defendants. As a matter of fairness to the defendants, it would be really only from after the time Mr Boughton's filed affidavit on behalf of Mrs Ellison was exchanged on 17 June 2016, allowing a contrasting of the rival pink areas from the two sketches (Annexures A and B), that the nature of what was being sought as an asserted modification to the easement that benefits Mrs Ellison's land would fall into a sharp focus.
Of greater force for me however ‑ and weighing against a granting of leave presently ‑ is the wasted substantive trial preparations investment submission of the plaintiff, in terms of the action now effectively being almost ready for a substantive two‑day determination of all issues. In the end, that submission must be accepted and prevail.
Had a consensual application been made here by all parties for a preliminary issue‑grounded final determination of this legal point (on a basis of agreed facts), I would have then been very amenable to finally determining the defendants' jurisdictional point of law in that context, effectively from an evidentiary perspective, by reference to the force of a comparison of the rival pink areas seen in Annexures A and B. However, the preliminary issue course is not supported by the plaintiff in the current circumstances, where the whole action is not that long (two days), and is said to be all but ready for a full resolution of all issues at such a trial.
Mr Bennett points out that Mrs Ellison's application seeks, in the alternative, 'such further order for the modification of the easement as this Honourable court may seem just'. He accordingly submits that the legal point as is now foreshadowed by the defendants may not be in the end as straightforward as simply contrasting the two sketches from the Boughton affidavit, from a perspective of resolving whether what is proposed by reference to a change to easement E700514E, is capable of being characterised as a 'modification' for the purposes of s 129C(1)(c). I was not greatly influenced by that submission. It is for a plaintiff, not the court, to formulate with full and proper precision what are the actual proposed modifications that the plaintiff seeks to the easement which currently benefits her land and correlatively burdens the Marshalls' land. The implicit suggestion in the submission that this could turn out to be something of an adjustable modification scenario over time, presents to me as being prima facie problematic for running a viable trial.
As I mentioned earlier, the potential merit of the argument underlying the defendants' application is a significant consideration. In Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260, Newnes JA (Pullin and Murphy JJA agreeing) said:
The requirements for leave to make an application for summary judgment out of time will not ordinarily be demanding if on its face the application has some merit. It is not easy to imagine a situation in which a case which is apparently devoid of merit should be allowed to proceed to trial simply because the defendant did not bring the application for summary judgment within the 21 days specified in O 16 r 1(1). Questions of costs, of course, may arise where an application is made very late, but that is another matter [48].
Tempting as it currently may be to isolate and immediately address what presents as a respectable jurisdictional point of law that the defendants now identify, that consideration, in the end, is counterbalanced and, for me, defeated, by essentially two related considerations favouring the refusal of the present application for leave out of time. First, the substantive underlying action as was submitted, and as I accept, is almost ready for what presents as only a two‑day trial. As matters stand, there is capacity for me to determine the action finally sometime in November or in December this year, if the parties and their counsel make themselves available. Given what now must be a significant and sunken investment in the preparation of most of the evidentiary materials which have been exchanged in the substantive preparations for a trial, that factor from a case management and resourcing perspective tips the balance for me towards proceeding at this time to a substantive determination of all issues, rather than determining only one aspect of the case in a fashion that may not achieve finality.
Second, a determination of the jurisdictional point concerning the meaning of the word 'modification' in s 129C(1)(c) in defendant's summary judgment contextual circumstances, carries for me a worrying capacity to prove ultimately wasteful. That is because if, hypothetically, the legal point were to be argued, then determined in the defendants' favour, but then the subject of an appeal predicated upon something found to be just arguable being raised against the conclusion, there would arise the unhappy scenario for all of an allowed appeal and then a need to re‑programme a substantive trial. If determined in the plaintiff's favour then the parties are back at square one and a trial looms ‑ albeit potentially delayed until well into 2017.
In the end, case management and resourcing considerations of achieving finality and avoiding potential waste and delay are determinative to my refusing the present application, given where things stand overall in a preparation for trial sense. That favours proceeding now to a substantive trial hearing and resolution of all issues. That is so notwithstanding that, on the present application, the plaintiff, as regards the merits of the defendants' legal point, did not really attempt to present any answering case authorities to rebut the prima facie legal arguments the defendants directed at the true meaning and scope of the word 'modification' in s 129C(1)(c). Instead, the plaintiff contends at this point that none of the case authorities collected by the defendants in support of their legal proposition are binding upon me (which is the case) and that the issue is best determined finally, in conjunction with all other issues at a trial.
I prefer then, on balance, for the action to proceed swiftly to a position of a final outcome upon all issues, within the framework of a timely two-day trial, as soon as the parties are able to accommodate that event in my list.
Finally, I observe in passing (essentially as a reminder to myself) that although it is a matter for a substantive determination in a trial context, the defendants' advocated jurisdictional point of law concerning the true meaning and scope of the word 'modification' within s 129C(1)(c) may present as an issue that could give rise to an application by the defendants, at the close of the plaintiff's evidence at a trial for a final judgment, on a basis of a no case to answer submission by one or more defendants. Obviously, if that all came to pass, I would need to hear argument about whether the defendants should be put to their elections at that point of the trial, applying the legal considerations considered by the Victorian Court of Appeal in Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187. That is a future eventuality which could present itself within the trial context.
Annexure A

Annexure B