Golden Oasis v Lyra P/L

[1992] FCA 777

JUDGMENT No. .2.22 .... J ,.. 2.%

IN THE FEDERAL COURT OF AUSTRALIA )	NO. QG 176 of 1991
OUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: GOLDEN OASIS PTY. LTD.

Applicant

AND:  LYRA PTY. LTD.

First Respondent

AND:  KINSEY BENNETT & GILL

Second Respondent

AND :  LYRA PTY. LTD.

Cross Claimant

AND:  GOLDEN OASIS PTY. LTD.

Cross Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	16 October,
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

claim.

1.        The first respondent pay the costs of today's proceedings to be taxed.

THE COURT DIRECTS THAT:

1. The applicant have leave to amend its statement of claim.

2. Within two days of the date of this order, the applicant file and serve its amended statement of

3 .        The first respondent file and serve its amended defence and cross-claim (if any) within 28 days of delivery of the amended statement of claim.

4.        The applicant file and serve its reply and defence to the cross-claim (if any) within seven days of service on it of any amended defence and cross-claim by the first respondent.

1. Subject to the order made by the court on 10 February, 1992 regarding witnesses who decline to furnish an affidavit of their evidence to a party, the first respondent file and serve any affidavits of witnesses on whose evidence the first respondent intends to rely within seven days of service on the first respondent of the applicant's amended statement of claim.

   The first respondent has liberty to file and serve by way of supplementary material, all affidavits it proposes to rely on in relation to the issue of the meaning and effect of Clause 39 of the contract dated 6 September, 1991.

   The first respondent deliver further and better particulars of paragraph 13 of its defence and cross-claim within seven days of service of the

   applicant's amended statement of claim.

   The applicant file and serve any affidavits in reply to the statements of evidence of the first respondent within seven days of receipt by them of the affidavits of evidence of the first respondent.

   If the first respondent wishes to claim damages against the applicant in respect of the matters raised in its solicitors' letter to the applicant's solicitors dated 17 June, 1992, it shall include a

amended defence and cross-claim. fully particularised claim for such damages in its

If the first respondent does not include a claim for damages in its amended defence and cross-claim, as provided by direction 9 herein, it will not be permitted to raise such a claim in this action unless it is able to satisfy the court that exceptional circumstances exist to permit such a course to be followed subsequent to the delivery by the first respondent of its amended defence and cross-claim.

Settlement and entry of orders is dealt with in
Order 3 6 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 176 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN: GOLDEN OASIS PTY. LTD.

Applicant

AND :  LYRA PTY. LTD.

First Respondent

AND :  KINSEY BENNETT & GILL

Second Respondent

AND :  LYRA PTY. LTD.

Cross Claimant

AND:  GOLDEN OASIS PTY. LTD.

Cross Respondent

m:	Drummond J
Date :
-	16 October, 1992

W: Brisbane

EX TEMPORE REASONS FOR JUDGMeNT

By paragraph 8 of its notice of motion, the applicant seeks an order that the first respondent, within	seven days, deliver full particulars of any loss and damage
which it claims as against the applicant. The order sought is curious insofar as the first respondent's cross-claim does not contain a claim for any damages.
The explanation for the course the applicant has taken in seeking such an order flows from a letter written by the solicitors for the first respondent as long ago as 17 June, 1992 which reads as follows:

"As you may be aware, our client recently re-sold
The Pines Shopping Centre.

Our client is presently calculating the loss and damage which it sustained as a result of your client's default and reserves its right to claim such loss and damage in the abovementioned action."

Notwithstanding that very clear intimation that a claim for damages flowing from loss on the resale of the shopping centre would be made against the applicant by the first respondent as long ago as June last, no suggestion has emerged on the part of the first respondent that the pleadings need to be amended to raise such a claim. It seems to me that

sufficient time must have passed to have enabled the first

respondent to decide whether or not it has suffered loss and whether or not, if it has suffered a loss, it wants to pursue that claim in the present proceedings. The contrary was not suggested.

It seems to me that the applicant's concerns reflected in paragraph 8 of the notice of motion are well founded. The concerns really come down to this: given the explicit foreshadowing by the first respondent of a claim for damages, which, despite the lapse of time, has not yet materialised, there is fear on the part of the applicant that such a claim may be sought to be raised on the eve of the trial. If that happens, there is the very real potential, if leave to amend is granted, that the trial date would be lost.

It may be possible - and I put it no higher than that - that if the first respondent does not seek to have determined in this litigation such a claim for damages, as was foreshadowed in its solicitor's letter of 17 June, it could be estopped from pursuing such a claim later in separate proceedings. If that were to be a real risk, it would provide a powerful reason why the first respondent, even at a very late stage, for example, on the eve of the trial, would be likely to be given leave to amend.

To ensure that the trial is not placed at such risk of being adjourned it seems appropriate that I give a direction that, if the first respondent wishes to claim damages against the applicant in respect of the matters raised in its solicitors' letter to the applicant's solicitors dated

17 June, 1992, it shall include a fully particularised claim

fully particularised, I mean that not only must the factual	for such damages in its amended defence and cross-claim. By
and legal bases for the claim be pleaded, but the amendment must also contain full particulars of the damages sought and how they are quantified.
I will further direct that, in the absence of the first respondent not including such a claim for damages in its amended defence and cross-claim, it will not be permitted to raise such a claim in this action, unless it is able to satisfy the court that exceptional circumstances exist to permit such a course to be followed subsequent to the delivery by the first respondent of its amended defence and cross- claim.
I certify that this and the
three preceding pages is a true copy of the reasons for judgment herein of the Honourable Mr. Justice Drummond.
Associate:
Date:  16 October, 1992

trial. If that happens, there is the very real potential, if
leave to amend is granted, that the trial date would be lost.

It may be possible - and I put it no higher than that - that if the first respondent does not seek to have determined in this litigation such a claim for damages, as was foreshadowed in its solicitor's letter of 17 June, it could be estopped from pursuing such a claim later in separate proceedings. If that were to be a real risk, it would provide a powerful reason why the first respondent, even at a very late stage, for example, on the eve of the trial, would be likely to be given leave to amend.

To ensure that the trial is not placed at such risk of being adjourned it seems appropriate that I give a direction that, if the first respondent wishes to claim damages against the applicant in respect of the matters raised in its solicitors' letter to the applicant's solicitors dated 17 June, 1992, it shall include a fully particularised claim for such damages in its amended defence and cross-claim. By

and legal bases for the claim be pleaded, but the amendment	fully particularised, I mean that not only must the factual
must also contain full particulars of the damages sought and how they are quantified.
I will further direct that, in the absence of the first respondent not including such a claim for damages in its amended defence and cross-claim, it will not be permitted to raise such a claim in this action, unless it is able to satisfy the court that exceptional circumstances exist to permit such a course to be followed subsequent to the delivery by the first respondent of its amended defence and cross- claim.
I certify that this and the three preceding pages is a true copy of the reasons for judgment herein of the Honourable Mr. Justice Drummond.
Associate: pHad- -
Date :  16 October, 1992