Hall v Hall

[1991] TASSC 162

Serial No B48/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Hall v Hall [1991] TASSC 162; B48/1991

PARTIES:  HALL, Geoffrey Milton
  v
  HALL, Clifton Leonard

FILE NO/S:  MA763/1991
DELIVERED ON:  16 September 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B48/1991
Number of paragraphs:  11

Serial No B48/1991
List "B"
File No MA63/1991

GEOFFREY MILTON HALL v CLIFTON LEONARD HALL

REASONS FOR JUDGMENT  ZEEMAN J

16 September 1991

1. This is an appeal from an order of the Master made 29 May 1991 whereby he ordered that two actions, No 718/1989 and No 1473/1989 (in each of which the appellant is the plaintiff and the respondent is the defendant), be consolidated and thereafter carried on as one action. I will hereafter refer to the appellant as "the plaintiff" and to the respondent as "the defendant".

1. By virtue of the provisions of O55 of the Rules of the Supreme Court, the jurisdiction to order consolidation may be exercised in two circumstances, namely, where "substantially the same question is involved in all the causes or matters" or where "the decision in one cause or matter will determine the other or others". Counsel for the defendant conceded that the latter circumstance does not apply in the present case. It follows that before I have any discretion as to whether or not to order consolidation, it needs to be established that substantially the same question is involved in both actions. There was some debate as to what is meant by the expression "substantially the same question is involved in all the causes or matters" as it appears in O55. The plaintiff submitted that that expression ought to be construed as requiring that all the issues in the two actions are substantially the same. On the other hand, counsel for the defendant submitted that as long as there was one question which was substantially common to both actions, then the requirement is satisfied.

1. Before considering those submissions, it is appropriate to refer to the nature of each of the two actions. Action 718/1989 is an action in which the plaintiff claims damages for the wrongful conversion by the defendant of a quantity of sawlogs. The statement of claim is not at all illuminating on the question as to how the plaintiff's cause of action is said to arise. However, some particulars of the allegations in the statement of claim have been delivered, and, in addition a number of facts were stated from the Bar table without objection. What follows is derived from those various sources. The plaintiff is the defendant's father. Prior to 1 July 1978 the plaintiff, the defendant and two other family members were in partnership as sawmillers, farmers, merchants and miners. One of the partnership assets was a property known as "Sunny Banks". Over a period of some years prior to the dissolution of the partnership, there were discussions between the plaintiff and the defendant as to the terms upon which the defendant might retire from the partnership. It was proposed during those discussions that the defendant retire from the partnership and receive in full satisfaction of his interest in the partnership the property known as "Sunny Banks", "less the timber rights". In due course the defendant retired from the partnership. The plaintiff's case, as pleaded by way of further and better particulars, is that a dissolution agreement was entered intO The fee simple in the property known as "Sunny Banks" was transferred to the defendant, subject to an existing mortgage to the Commonwealth Development Bank of Australia securing the sum of $21,000.00. The plaintiff's allegation of ownership of the subject timber was the subject of a request for particulars, and those particulars were initially provided in the following form:

"The plaintiff is and has at all material times been the owner of all trees growing on the property known as 'Sunny Banks'. The plaintiff was originally the owner of the fee simple in 'Sunny Banks'. By an agreement made between (inter alia) the plaintiff and the defendant in or about 1978 and evidenced in writing the plaintiff agreed to transfer the fee simple in 'Sunny Banks' to the defendant but in so doing expressly reserved to himself the owner–ship of and all rights to the trees growing on 'Sunny Banks'."

1. The defendant's solicitors were not satisfied with those particulars, and sought further particulars, in the following terms:

"In respect of clause 1 of the particulars contained in that letter, we do not imagine you are trying to be deceptive when you say the agreement was 'evidenced in writing', but in order to clarify the matter please provide the following further particulars in relation to the alleged reservation by your client to himself of the ownership of and/or rights to the trees growing on 'Sunny Banks' ('the reservation'):

(a)State whether the reservation was oral, partly oral, in writing, partly in writing, implied or partly implied.

(b)In so far as the reservation was oral or partly oral, state when, where and between what persons the conversation or conversations constituting the same took place and give the material substance of each such conversation.

(c)In so far as the reservation was in writing or partly in writing:

(i)Identify sufficiently the document or documents constituting the reservation.

(ii)State in whose possession each such document now is and where it may be inspected and if there be no copy give the material substance thereof.

(iii)If it is alleged that the document was a contractual document between the parties, set forth with all material dates and places each act, fact, matter, circumstance and thing upon which such allegation is founded.

(d)In so far as the reservation was implied or partly implied, set forth with all material dates and places, each act, fact, matter, circumstance and thing giving rise to each such implication.

(e)In so far as such instruction, request, agreement, term or condition of agreement, direction, transaction, matter or thing was constituted wholly or in part by a conversation, document or act of a person acting or purporting to act on behalf of another, give the like particulars as are sought above of the authority (express, implied or ostensible) of that other to engage in such conversations, draw up such document or do such act.

(f)Please state whether the Plaintiff alleges that the reservation extended to:

(i)Timber which at the time of the reservation was not yet growing on 'Sunny Banks'.

(ii)Timber which at the time of the reservation was not yet capable of economic conversation (sic) by sawing into saleable timber.

(iii)Timber which at the time of the reservation was not yet specifically subjected to a specific agreement pursuant to clause 18 of the agreement between the Plaintiff and A V Jennings Industries (Australia) Ltd and A G Webster & Woolgrowers Ltd dated 10th November 1973.

(iv)All timber which as at the time of the reservation had the potential to become economically convertible by sawing into saleable timber.

(v)Timber which, at the time of the reservation, was not or had not yet become in the opinion of A V Jennings Industries (Australia) Ltd and A G Webster & Woolgrowers Ltd (or their assigns) capable of economic conversation (sic) by sawing into saleable timber."

That request was answered in the following terms:

"(a)The reservation was partly oral, partly in writing and partly implied.

(b)(i)         In or about the early part of 1975 the plaintiff telephoned the defendant one evening. The following is the substance of the conversation which took place.

Plaintiff – Cliff – will you take 'Sunny Banks' less the timber rights for your share of the partnership?

Defendant – (hesitated) I am not much of a farmer.

Plaintiff – I don't care whether you farm it or flog it but I want you out of the partnership – the others are out (or are getting out) and I want you out to.

(ii)In a number of conversations between the plaintiff and the defendant between the occasion referred to in paragraph (i) above and on or about the 30th June 1978 the parties discussed the terms of the agreement by which it was proposed the defendant would become the owner of 'Sunny Banks' in return for his share of the partnership. The plaintiff had originally intended to transfer 'Sunny Banks' to the defendant 'less the timber rights' but otherwise free from encumbrance. In the event the property was transferred also subject to a mortgage debt of approximately $21,000.00.

(c)(i)       Deed of dissolution of partnership executed by the plaintiff and the defendant in or about 1978.

(ii)A copy of the document is in the possession of the plaintiff's solicitors. A photocopy of the deed of dissolution has been previously supplied to the defendant's solicitors at the defendant's solicitors request.

(iii)The document evidences an agreement between (inter alia) the plaintiff and the defendant made for valuable consideration and by which the defendant became, subject to certain limitations and acknowledgments contained therein, the owner in fee simple of the land known as 'Sunny Banks'.

(d)The timber on 'Sunny Banks' was subject to the terms of the agreement between the plaintiff and the defendant referred to in paragraph (f) of the defendant's request for particulars.

(e)The plaintiff does not allege that the reservation of timber rights to the plaintiff was effected by or as a result of the acts of an agent of either party. Otherwise the plaintiff does not understand this request.

(f)(i)        NO

(ii)Yes.

(iii)Yes.

(iv)Yes.

(v)Yes."

It should be observed that, as particularised, it is difficult to see how any rights of the plaintiff to timber could be said to have been derived other than from the written dissolution agreement. The conversations particularised hardly suggest any form of concluded agreement and are indicative of being no more than negotiations leading up to the execution of the agreement. I was provided with a copy of the document referred to in par(c) of the last set of particulars. I observe that it is not in the form of a deed. Counsel for the plaintiff told me that there was now some doubt as to whether that document had been executed. I do not consider that I should have regard to that. The plaintiff, by his particulars, has pleaded that document. I ought to consider this appeal upon the basis of the plaintiff's case as pleaded. Clause 2 of the document was in the following terms:

"2        THE Retiring Partner [scil the defendant] shall receive in full satisfaction for his share and interest in the said late partnership capital effect and goodwill thereof a transfer of the property at Strickland known as 'Sunny Banks'. This transfer will be from GEOFFREY MILTON HALL (acting as Trustee for the Continuing Partners) [scil the plaintiff and others] ..... and the transfer of this property shall take place on the signing hereof and the Retiring Partner shall be entitled to receive 'Sunny Banks' free from all encumbrances save a mortgage to Commonwealth Development Bank for $21,000.00 which shall be taken over by the Retiring Partner and further it is acknowledged that Webster Hall Timbers Pty Ltd have purchased all trees growing on 'Sunny Banks' which are capable of economic conversion by sawing into saleable timber. This purchase was by way of Agreement dated the 10th day of November, 1973 and the Retiring Partner is accordingly not entitled to any property in such trees and will allow Webster Hall Timbers Pty Ltd to exercise all their rights in respect of the relevant trees growing on 'Sunny Banks' pursuant to this agreement dated the 10th day of November, 1973 (which such agreement was between Geoffrey Milton Hall of the one part and A V Jennings Industries (Australia) Limited and A G Webster & Woolgrowers Limited of the other part).

1. I was provided with a copy of the agreement dated 10 November 1973 referred to in that clause. By that agreement the plaintiff sold certain of the timber on "Sunny Banks" on certain terms and conditions. It might be doubted whether the provision in the dissolution agreement, to which I have referred, can possibly be said to constitute a reservation to the plaintiff of the ownership of and rights to trees growing on "Sunny Banks". Prima facie the rights to growing timber must pass with the land. It is somewhat difficult to see how the effect of clause 2 of the dissolution agreement can be anything other than passing to the defendant the absolute fee simple in "Sunny Banks" subject to the mortgage and subject to the rights of Webster Hall Timbers Pty Ltd under its earlier agreement with the plaintiff. However that will be for the trial judge to determine. The threshold question which must be determined in this action is whether the written dissolution agreement (or any other agreement disclosed by the particulars) reserved any rights in the timber to the plaintiff. If no such rights were reserved to the plaintiff, then his action must fail. It is not suggested that he acquired any rights to timber upon the defendant's land in any other way. If the plaintiff were to succeed on the threshold question, then certain other issues of fact would need to be determined, namely, whether the relevant timber was the subject of the reservation, whether the defendant did wrongfully convert the timber and an assessment of the damages.

1. The defendant has counterclaimed in this action seeking damages for conversion of timber, an account for royalties, and some other consequential relief. That counterclaim is based upon the allegation that the plaintiff has wrongfully converted timber growing on "Sunny Banks". Again, the threshold question in the counterclaim is the same, whether any rights in the relevant timber were reserved to the plaintiff.

1. Action 1473/1989 is one in which, as pleaded in the statement of claim, the plaintiff seeks the delivery up by the defendant of certain timber upon an area of land known as "Stacey's Block", which is part of "Sunny Banks", an injunction restraining the defendant from preventing the plaintiff from entering the land to remove the timber and damages in detinue and conversion. In the light of the events which have happened since the statement of claim was delivered, amendment is required. The relevant timber has in fact been sold by agreement between the parties, and the proceeds of sale placed on interest–bearing deposit. The real issue is whether or not the plaintiff is entitled to those proceeds of sale and the interest thereon. By way of counterclaim, the defendant claims a declaration that he was the owner of the timber and entitled to the proceeds of sale thereof and for an order that the moneys upon deposit and the interest thereon be paid out to the defendant. The plaintiff's case as to the ownership of the timber appears from the particulars delivered in this action. For all relevant purposes, those particulars are in the same terms as those delivered in the other action. A determination of the question of the ownership of the timber will substantially dispose of this action, although some minor consequential matters would require consideration if the threshold question were to be determined in favour of the plaintiff.

1. The overriding question which falls for determination in each of these actions is whether or not the contractual arrangements between the parties were such that a beneficial interest in the subject timber was reserved to the plaintiff by agreement between the parties. On the face of it, it is difficult to see how those rights will be able to be determined other than by reference to such agreement or agreements entered into by the parties as are referred to in each set of further and better particulars. I should say that it has not been pleaded that the provisions of the written dissolution agreement, or any other agreement between the parties, have merged in a transfer of the land to the defendant.

1. The terms of the agreement between the plaintiff and the defendant leading to the transfer of "Sunny Banks" to the defendant, including the proper construction of any written agreement between them, are common to both actions. The actions involve different lots of timber, but their ownership is to be determined by reference to the same contractual arrangements. Whilst it cannot be said that all questions in the actions are substantially the same, the major threshold question which is to be determined in each action and in each counterclaim is the same. In those circumstances, I am of the view that substantially the same question is involved in both actions within the meaning of O55. It follows that there is jurisdiction to order consolidation. The word "substantially" must have been employed so as to embrace cases where it cannot be said that the questions in the actions are identical. There is sufficient commonality of issues in the two actions to be able to say that substantially the same question is involved, even if it is insufficient so as to attract the jurisdiction conferred by O55 to say that the actions each raise a question which substantially is raised in the other. For a discussion in relation to a rule giving rise to some of the same considerations, reference may be made to In re Burford, Burford v Clifford [1932] 2 Ch 122, at p138.

1. In my view, this is a proper case in which to order consolidation. The course of negotiations and the ultimate contractual arrangements between the parties must necessarily form a major portion of the evidence in each of these cases. That evidence is common to both actions. It would have been perfectly proper to make the subject matter of both actions the subject of one action. I agree with what was said by Young CJ (with whom Kaye J agreed) in Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97, at p100, that "it is better to confine [the making of a consolidating order] to cases where several actions have been brought which might have been joined in one writ". This is such a case. I reject the submission made by counsel for the plaintiff that this is not such a case because the cause of action pleaded in the second action had not arisen at the time the first action was commenced. It is correct to say that both matters could not have been included in the first action at the time that that was commenced, but I do not think that that is what the learned Chief Justice had in mind. The several actions might have been joined in one writ if proceedings had been instituted at a time when all causes of action had crystalised. Both causes of action might have been joined in one writ in the sense referred to by the learned Chief Justice.

1. Whilst consolidation orders should not be readily made, I consider this is a case where the interests of justice require that the order be made. Accordingly, the appeal will be dismissed.