Harrison, Stephen v Lidoform Pty Ltd
[1998] FCA 1487
•24 NOVEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 649 OF 1998
BETWEEN:
STEPHEN HARRISON
APPLICANTAND:
LIDOFORM PTY LIMITED
(ACN 009 870 008) (RECEIVER & MANAGER APPOINTED)
FIRST RESPONDENTJUTTA BRINKMEYER, ALEXANDER WILLIAM BRINKMEYER
SECOND RESPONDENTIAN JOHN NICOL, GRAEME CHARLES NETTLE, PAUL RICHARD O'CONNOR (T/AS BARRADS)
THIRD RESPONDENTWODEN CONTRACTORS PTY LIMITED (ACN 008 581 342)
FOURTH RESPONDENTWODEN CONSTRUCTIONS PTY LTD (ACN 008 403 763)
FIFTH RESPONDENTANTHONY GREGORY MCGRATH
SEVENTH RESPONDENT
JUDGE:
HELY J
DATE:
24 NOVEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HELY J: Lidoform is the registered proprietor of various parcels of land situate at Jerrabomberra Hill, Queanbeyan, generally known as the "Jerrabomberra Heights Estate" ("the Estate"). In 1986 the Estate comprised some 2,000 acres. It was zoned "non-urban". As a result, owners of lots within the Estate did not have any entitlement to erect a structure upon their property, nor could structures be erected on any part of the Estate.
Lidoform embarked upon the development of the Estate in the expectation that it would be rezoned so as to enable its use for residential purposes.
On 13 June 1986 Lidoform entered into a contract for sale of land with the applicant for the sale and purchase of Lot 666 DP17205 being the whole of the land comprised in Certificate of Title Volume 15316 Folio 166 ("the Property") for the sum of $10,000.
The contract is a complex document, and it is not easy to summarise its effect. It was drawn so as to contemplate three possible alternatives in relation to the acquisition of property in the estate:
The sale of a lot in its raw condition without any rezoning to allow for erection of buildings on the land taking place. Cl 31 enables the Vendor to discontinue its endeavours to secure rezoning, and to require the purchaser to complete the contract for the sale and purchase of the Lot comprising the Property in accordance with its terms.
The Vendor is successful in its rezoning application, but without the Council requiring a resubdivision of the Estate. In that case, the sale of the Lot comprising the Property proceeds, but with the purchaser being obliged to bear, in addition to the price, its proportion of any service costs incurred in relation to the rezoning (Cl 23).
The Vendor is successful in its rezoning application, but as a condition of the rezoning, a resubdivision of a particular area or areas is required. Cl 26 reserves to the Vendor the right to resubdivide the whole or part of the Estate, including the property, by means of a "New Plan". If the New Plan alters the dimensions, size, survey or siting of the lot comprising the property, the Vendor is required to offer the purchaser an alternative lot in the New Plan which is as proximate as possible (having regard to Council requirements, the Vendor's obligations to other purchasers of land in the Estate, and other considerations which might reasonably apply) to the location of the Lot comprising the property (Cl 25). The purchaser may elect (Cl 29) to affirm the contract and accept the Substituted Land in lieu of the Property, or it may exercise its right to rescind the agreement and require the Vendor to refund the purchase price less certain deductions specified in Cl 29. If the Lot offered to the purchaser has an area of 80% (or less) of the area of the property, then if the purchaser so requests, the Vendor is required to offer the purchaser a lot in another location within the Estate (Cl 24(c)).
Other relevant provisions of the contract are:
The deposit and payments of, or on account of, the purchase price "shall be charged on the property" in favour of the purchaser pending completion subject to any subsisting mortgage or charge. (Cl 6(e))
Until "completion" any title passing is equitable only, and subject to Part III (which is concerned with resubdivision and substitution of Lots). The Vendor is to cause legal title to pass on completion (Cl 7), but the Vendor is entitled to hold the certificate of title and transfer until formal completion (Cl 5).
The Vendor "shall not further mortgage the Property" pending Formal Completion.
It is not necessary, for the purposes of the applications currently before me, to engage in further analysis of the concepts of "Completion" or "Formal Completion".
On 14 July 1986 the applicant paid the balance of purchase price. He received at least copies of the Certificate of Title and a transfer from Lidoform to the applicant. He may have received the originals, but if he did, they were probably returned to Lidoform to be held "in escrow … pending rezoning and/or a resubdivision of the property" (Ex VE 15 p12, 15).
On 11 January 1991 Queanbeyan Local Environmental Plan No 100 was gazetted. This provided for the rezoning of the land to permit of the erection of dwellings on Lots within the Estate. Apparently this was conditional upon a resubdivision of part or parts of the Estate taking place.
The fourth respondent ("Woden Contractors" or "Woden") is a civil engineering contractor. The fifth respondent ("Woden Constructions" or "Woden") is the ultimate holding company of Woden Contractors, and is a company whose business is that of investment and plant hire. Woden Contractors carried out development work in relation to Stage 3 of the Estate for Lidoform, as a result of which, it was owed a little more than $2 million at 30 November 1994. It had agreed to do further work subject to it receiving security for monies owing to it.
On 30 November 1994 an agreement was entered into between Lidoform and Woden Contractors in relation to what was called "the security land" which forms part of Stage 3. Lot 666 DP 17205 was part of the security land. In essence the agreement created an equitable mortgage over the security land to secure repayment of monies due and to become due to Woden Contractors for development work. The agreement refers to a "standard Jerrabomberra Heights Estate Contract for sale". I am prepared to proceed for present purposes upon the basis that Woden knew that there was a standard form contract, and knew of its terms.
An unregistered mortgage was executed pursuant to that agreement. That mortgage included Lot 666 in DP 17205. On 29 August 1995 Woden Contractors lodged a caveat No 0506746 claiming an estate or interest as mortgagee under an unregistered mortgage of 30 November 1994.
On 29 July 1996 an agreement was entered into between Lidoform and Woden Contractors which provided for Woden Contractors to be granted a first ranking mortgage over "all Lidoform" land, including "all unsold land zoned residential (known as stages 3, 4 and 5)" to secure about $4.5 million and monies to become due in the future. On 30 July 1996 mortgage registered No 2422309 was granted pursuant to this agreement. Whilst Folio Identifier 666/17205 was included on p 44 of the schedule of lands, the reference has been crossed out. On 28 July 1997 the seventh respondent was appointed receiver of the lands comprised in this mortgage.
On 11 December 1996 an unregistered mortgage was granted by Lidoform in favour of Woden Contractors. It included folio identifier 666/17205.
On 16 January 1997 a plan of resubdivision was registered as DP 864750. It effected a resubdivision of certain of the Lots previously comprised in DP's 17204, 17205 and 862277. Lot 666 in DP 17205 is now part of lots 387 and 386 in DP 864750. The balance of Lot 666 is not included in this Plan, and is apparently now part of a roadway comprised in some other plan.
On 7 July 1997 mortgage No 3242144 was entered into between Lidoform and Woden Contractors. It does not include the subject land (by which I mean Lot 666 in DP 17205 and/or Lots 387 and 386 in DP 864750). The seventh respondent was appointed receiver of the lands comprised in this mortgage on 24 July 1997.
On 14 August 1997 a further, but unregistered mortgage was entered into between Lidoform and Woden Contractors. This includes the subject land. On 18 September the seventh respondent was appointed Receiver pursuant to this mortgage.
On 26 May 1998 Lidoform, by the seventh respondent its Receiver executed further mortgages in favour of Woden Contractors including mortgage 5019479J which affected the subject land. On 18 September 1998 the seventh respondent was appointed receiver of the lands comprised in this mortgage.
The mortgages executed on 30 November 1994 and 12 December 1996, involved a breach of Cl 5 of the contract insofar as they included the Property.
The New Plan (DP 864750) affected the Property in a manner which enlivened the Vendor's obligation to offer to the applicant a substituted lot in the New Plan, and if the area of the substituted lot offered was 80% or less than that comprised in the property, and the applicant so requested, a lot in another location within the Estate. No such offer has been made.
The proceedings
The amended statement of claim pleads the contract including the express term that payments of or an account of the purchase price would be charged on the property or the substituted land, and that the Vendor would not further mortgage the property or the substituted land pending completion.
It also pleads an implied term as follows (ASC 23):
"It was each an implied term of the standard Contract that:
(a)the Vendor would do all things necessary on its part to enable the Purchaser to have the benefit of the standard Contract;
(b)(i) If the Vendor exercised its discretion to resubdivide the Development, or any part or parts thereof, including the purchased land, and thereafter failed, neglected or was unable, to offer the Purchaser, an equal number of alternative lots in the new subdivision, in accordance with Clause 24 of the standard Contract, then the Vendor would offer the Purchaser another unencumbered lot, or lots of land, in another location within the Development then remaining, until completion of the standard Contract; and
(ii)The Purchaser, or any person or corporation claiming through him, had the right to lodge a Caveat on the lot or lots of land, within the Development then remaining pending formal completion, which Caveat would exclude from its operation:-
i.registration by the Vendor of the Transfer to the Purchaser; and
ii.registration by the Vendor of any Plan of Subdivision."
This implied term was not alleged in the statement of claim as originally drafted.
It is claimed that, by virtue of the contract, the applicant acquired an equitable estate or interest in the property, and in the substituted land, and in the "lot or lots of land in another location within the Development" (ASC paras 32 and 33). This last interest is alleged to arise from payment of the purchase price for the property, if a New Plan is registered including the property and if there is a failure to offer the applicant a substitute lot in accordance with Clause 24 (ASC 33).
It is claimed (to put it in very general terms) that the fourth, fifth and seventh respondents took whatever interest they acquired in the property or in the substituted land or in the lots within the development then remaining, with knowledge, actual or imputed, of the applicant's estate or interest therein, and that the taking of the mortgages earlier referred to involved Woden Contractors knowingly participating in various breaches of duty on the part of Lidoform.
THE REPRESENTATIVE NATURE OF THE PROCEEDINGS
The amended application asserts that it is brought by the applicant as a representative party on behalf of the four groups of persons described in the application. The applicant's solicitor has been instructed by 90 persons who have purchased 116 lots as "the property". 64 lots are not affected by any resubdivision. 52 of the lots have been resubdivided and the title reference has been altered due to the resubdivision. It is not clear whether substitute lots have been offered to all or any of these persons, but the evidence so far filed contains assertions on the part of one or more purchasers that a substitute lot has been offered to him or her. The applicant's solicitor expects that instructions will be forthcoming from other persons, and that there are 190 persons affected by the representative proceedings.
THE CLAIM FOR INTERLOCUTORY RELIEF
The relief currently sought is formulated as follows:
An interlocutory injunction restraining each of the Fourth, Fifth and Seventh Respondents by itself, himself or by its or his servants and agents from dealing with, or disposing of, whether by way of sale, transfer, mortgage, charge, encumbrance or lien, such Lots in DP 846750 registered in the name of the First Respondent.
That each of the Fourth, Fifth and Seventh Respondents, by itself, himself or its or his servants or agents, be restrained from taking any further step in the enforcement or registration of the Mortgages, the Agreement and the Receiver's Mortgages as defined in the Amended Statement of Claim and the unregistered Mortgage dated 14 August, 1997 between the First Respondent and the Third Respondent.
THE LIEN OR CHARGE
By 14 July 1986, at the latest, the applicant had an equitable interest by way of charge in the property. That was earlier in point of time than any equitable interest in the property which Woden contractors acquired by virtue of the unregistered mortgages of 30 November 1994 and 12 December 1994. There is at least an arguable case that the registered mortgage given on 30 July 1996 does not affect the property. On the evidence as it stands at the moment, the better view is that it does not.
There is at least an arguable case that this charge did not simply evaporate on resubdivision, but continued to subsist in relation to those lots in the New Plan which incorporated the property or parts of it. That means that there is an arguable case that Lots 386 and 387 in DP 864750 or part of those lots are affected by the applicant's charge. I do not think that there is an arguable case that on registration of a New Plan, the lands the subject of the charge in some way expanded so as to encompass either the whole of the unsold land in the New Plan, or in the balance of the estate.
Any equitable interest which Woden Contractors acquired under the unregistered mortgage of 14 August 1997 is later in point of time than the applicant's interest, and may give rise to the same priorities issues as will probably arise with respect to the earlier unregistered mortgages.
I accept that there is a serious question to be tried as to whether the equitable charge which the applicant claims in the subject land subsists, and as to whether it is entitled to priority over any equitable interest accruing in favour of Woden Contractors as unregistered mortgagee. I accept (in the sense necessary to sustain interlocutory relief) that the only registered interest which might defeat the applicant's claim is that occurring by virtue of the Receiver's mortgage of 26 May 1998. There has been little opportunity for investigation of the circumstances surrounding the granting of that mortgage, and I did not understand Mr Hutley SC to put it forward as a significant barrier to the granting of interlocutory relief to preserve a claim to an equitable charge on the subject land. I would not, in all the circumstances, regard the fact of this mortgage as a sufficient reason for denying to the applicant relief (designed to maintain the status quo) .
Accordingly, subject to receipt of the usual undertaking as to damages, I would be prepared to grant an interlocutory injunction at the suit of Mr Harrison restraining the fourth, fifth and seventh respondents until the hearing of these proceedings or further order from registering any dealing in relation to the lands comprised in Folio Identifiers 386/864750 and 387/864750, and from selling, encumbering or otherwise disposing of or dealing with those lands.
THE OTHER LOTS OF LAND IN ANOTHER LOCATION WITHIN THE ESTATE
As I understood the applicant's submissions, the applicant's contention is that it has an equitable interest in all of the lots in DP 864750 retained by Lidoform, by virtue of the vendor's unfulfilled obligation arising from Cl 24 to offer a lot in the New Plan to the purchaser in substitution for the Property. The equitable interest in the lots of land in another location within the estate arises either from the contingent entitlement to be offered such a lot flowing from Cl 24, or from the implied term set out above.
Equitable interests are commensurate with the remedies available for their enforcement. It was submitted that specific performance can be obtained of the promise to offer a lot in the New Plan, and in another location within the Estate, and an injunction will lie restraining disposition of any lots until the offer contemplated by Cl 24 of the contract has been made. If and when that offer is made, presumably the equitable interest in the balance of the estate falls away, and is replaced by an equitable interest in the particular lot offered, similar to that which would be possessed by the holder of an option over the substituted property. The applicant called in aid the decision of the Supreme Court of Western Australia in Kupek and Kupek v Key West Constructions Pty Ltd (1990) 3 WAR 419. That was a case of a contract for the sale of specified and identified lots in a proposed Strata Plan. At p 432 Malcolm J said:
"In my opinion, in appropriate circumstances, a Court would be prepared to protect a purchaser's interest under a contract such as that in the present case, at the so-called inchoate stage, both by granting specific performance in the sense of requiring the vendor to do all things necessary to be done to procure registration of the strata plan, as well as restraining the vendor by injunction from dealing with the land inconsistently with the purchaser's right to specific performance of the contract, both in the special sense and, subject to fulfilment of the condition, in the ordinary sense: cf Pakenham Upper Fruit Co Ltd v Crosby (1924) 35 CLR 386 at 396-399, per Isaacs and Rich JJ."
The problem here, however, is that the obligation to offer a substituted lot does not attach to any particular parcel of land. Whilst the amended statement of claim (eg paragraph 32) refers to the acquisition by the applicant of an equitable interest in the "substituted land", until allocation, no particular lot satisfies that description.
Alternatively (ASC 32) the equitable interest is said to subsist in all lots within the estate which might be applied in satisfaction of the contractual condition. That seems excessive. Why should the whole estate be sterilised just because the applicant is entitled to receive an offer to acquire one lot within it? I am not satisfied that the applicant can make out a case for an equitable estate or interest in each lot in the New Plan, let alone in all other lots of land in another location within the estate, sufficient to sustain interlocutory relief.
It is fundamental to the notion of an equitable estate or interest in land, or of any proprietary interest, that it should exist in relation to particular property. The applicant may have a personal claim against Lidoform for an order that it perform its obligations under Cl 24. I am prepared to assume, for the purposes of this application, that it is at least arguable that the obligation to offer a substitute lot may extend to other lots in other locations within the estate if, for some reason, there are no lots in the New Plan available to be applied in that way. The fact remains that there is no substituted land in which an equitable interest can subsist until its allocation. The claimed interest in all of the lots in the New Plan and in all of the Lots within the Estate, is inconsistent with the Vendor's liberty, recognised by the contract, to offer lots to others as substituted land.
The applicant was somewhat ambivalent as to when it was that this equitable estate or interest arose. At one point in the argument it submitted that the interest arose at the point of, or after, the registration of the New Plan. That gave rise to a problem in as much as both registered and unregistered mortgages were granted in favour of Woden Constructions prior to that date, and which did not, in relation to lots other than the property, involve any breach of the promise not to mortgage the property. Nor did they involve a breach of any other promise made by Lidoform to the applicant. At another point it was submitted that the interest arose at the point of the contract, or on payment of the price. That gave rise to the problem that it cannot be seriously argued (at least in my view) that it is necessary as a matter of business efficiency, or reasonable, to imply into a contract a term having the effect of conferring an estate or interest in the applicant (and, by the same reasoning, in favour of all purchasers) in all lots in the Plan in aid of his entitlement (if the third of the alternative methods of acquiring property in the Estate referred to at the beginning of these reasons comes to pass) to be offered one of them.
The fundamental flaw in the applicant's argument, in my view, is that any personal equity to be offered a substituted lot only becomes a proprietary interest when it attaches to an identifiable lot. There is no proprietary right or interest in the whole at the point at which there is merely a personal obligation on the vendor to select a part and to make an offer of it. Beneficial Finance v Multiplex Constructions Pty Limited (1995) 36 NSWLR 510, 524 supports this conclusion.
I do not think that there is a serious question to be tried as to whether the term pleaded in ASC 23b(ii) should be implied into the contract. In my view such a term is incapable of satisfying any of the tests for implication of contractual terms.
Accordingly, I am not prepared, at the suit of Mr Harrison to grant interlocutory relief in the form sought, because I am not satisfied that he has established a sufficiently arguable case to justify relief in that form. I am not satisfied that there is a serious question to be tried as to whether the applicant has an estate or interest in the balance of the development remaining in the hands of Lidoform outside the subject property.
A MATTER NOT ARGUED
It was not put to me that an injunction should issue restraining Woden Contractors from entering into any dealing with lots in the development which would put it out of Lidoform's power to perform its obligations to the applicant, based on some equity other than a proprietary interest in the balance of the estate. I do not mean to imply any view that a case to that effect is available. I simply record that it has not been put, and that I have not given any consideration to it.
THE STRIKE OUT APPLICATION
The amended application states that the application is brought by the applicant as a representative party. It identifies four groups of purchasers, each of which has different characteristics, "to whom this proceeding relates". The first division is between purchasers who retained the third respondent to act as their solicitor in connection with the purchase, and those who did not.
Then there is a further division of those who retained the third respondent to act as their solicitor in connection with the purchase, into those to whom a completion notice has not been issued, those to whom a completion notice has been issued and who have affirmed the standard contract, and those to whom a completion notice has been issued and who have rescinded the standard contract. A completion notice is a notice given pursuant to Cl 25 of the contract identifying the substituted land offered to a purchaser in consequence of the registration of a new plan which alters the dimensions, size, survey or siting of the lot comprising "the Property". It is not clear, at least to me, how the persons holding 64 lots which are not affected by a resubdivision fit into these groupings.
Mr Harrison is a member of a group which retained the third respondent to act in connection with the purchase. Although the lot comprising the Property was affected by a New Plan so as to enliven the operation of Clause 24, he has not been given a completion notice in accordance with Clause 25. Paragraph 155 sets out the groups identified in the application whom the applicant claims to represent. Mr Harrison's personal claim brings him within group 155(a).
Paragraphs 156-8 appear under the heading "circumstances" and are as follows:
"156.The claims of the applicant and the represented parties are in respect of, or arise out of, the same, similar or related circumstances being the sale and development of the land in the Development and the subsequent mortgage, or purported mortgage or encumbrance or purported encumbrance, by the First, Second, Seventh Respondents, in favour of the Fourth and/or Fifth Respondents.
157.The said circumstances were aided, abetted, counselled or procured and each abovenamed respondent was knowingly concerned with the circumstances.
158.The Third Respondents were the solicitors acting for the Applicant and some of the represented parties, or the First Respondent."
Paragraph 159 lists a number of common issues of law and fact which all claims are said to give rise to. It is as follows:
"159.All claims give rise to substantial common issues of law and fact including:
a.Whether the respondents, or any of them, ought to have had each of the members of the sub-groups, or any of them, within its or their contemplation as being likely to be affected by its or their acts or omissions.
b.The breach of the standard Contract by the First and/or Seventh respondent to each of the members of the sub-groups or any of them.
c.The breach of duty owed by the First, Second and/or Seventh respondents to each of the members of the sub-groups or any of the breach of trust by the First, Second and/or Seventh respondents.
d.The breach of trust by the First, Second and/or Seventh respondents.
e.The knowledge of deliberate ignoring of the conduct of the First, Second and/or Seventh Respondents by the Fourth and/or Fifth Respondent.
f.The falsity, deceptiveness or misleading nature of the First, Second, Fourth, Fifth, Sixth and Seventh Respondents.
g.Remoteness of damage.
h.Manner and method of assessment of loss and/or damage.
i.Specific performance of the standard Contract or such other relief as may be granted by the Court.
j.The validity or otherwise of the Mortgages, Receiver's Mortgages and the Agreement.
k.The determination of the equitable, or such other estate or interest, that each of the members of the sub-group, or any of them, has, pending completion of the standard Contract in:
i.the purchased land;
ii.the substituted land; and/or
iii.the lot or lots in another location within the Development remaining.
l.The priority of interests in the land within the Development."
The applicant contends that Order 73 rule 3 requires that representative proceedings must be filed by filing an application in accordance with Form 129. The amended application follows that Form. Order 4 r 6 requires, where a statement of claim is filed with the application, that it show the nature of the applicant's claim and the material facts on which it is based. The amended application satisfies this description.
Section 33H specifies additional matters required to be specified in an application commencing a representative proceeding, or a document filed in support of such an application, namely:
(a)A description of the group members to whom the proceeding relates. Paragraph 155 of the amended statement of claim satisfies this requirement.
(b)The nature of the claims made on behalf of the group members and the relief claimed. Paragraph 159 and the amended application specify the relief claimed on behalf of group members.
(c)The common questions of fact or law arising. Paragraph 159 identifies these.
Although the application purports to be brought by the applicant as a representative party on behalf of members of various subgroups, the amended statement of claim pleads only the case of Mr Harrison in his personal capacity. It makes no attempt to set out the claims on the basis of the claims, of other group members "to whom this proceeding relates". Even if it is assumed (and I do not think that it should be left to assumption) that the other persons in the group referred to in ASC 155(a) are in the same position as Mr Harrison, what assumption is to be made about the persons comprising the other subgroups?
A representative party may be able to enforce the rights of others in a proceeding brought under Part IVA, but the statement of claim needs to identify what the rights of those represented are claimed to be, and how they are said to arise. In my view this is necessary in order to give definition to the proceedings, and to expose the issues for determination in the proceedings. It is also necessary that class members know with some precision the nature of the case which the applicant seeks to bring on their behalf so that they can decide, in terms of s 33J, whether to opt out of a claim formulated in that way. A judgment given in a representative proceeding binds all group members other than persons who have opted out. Section 33ZB Federal Court of Australia Act 1976. Whilst the amended statement of claim remains in its present form, one simply does not know to what it is that group members are bound.
The applicant points to sections 33Q, 33R, 33S and 33ZF as mechanisms by which orders can later be made so as to expose and determine the issues which will arise in the proceedings. On this approach, the issues in the case, insofar as it is a representative action, will emerge by some means other than the pleadings. I do not think that Part IVA of the Act was intended to operate in this way.
In Connell v Nevada financial Group Pty Ltd (1996) 139 ALR 723, 728 Drummond J emphasised the importance of the pleadings in specifying precisely what representations were made to individuals within a class so that the Court can be satisfied that each class member truly does set up a representation to the same substance and effect.
In Cameron v Qantas Airways Ltd (1993) ATPR 41 – 251 Beaumont J had to consider a statement of claim fashioned in a manner similar to the present amended statement of claim. His Honour took the view, with which I respectfully agree, that it is not sufficient to plead the personal claim of the representative, without clearly articulating the basis of the claims of those whom the applicant purports to represent. His Honour also took the view, with which I again respectfully agree, that it is no answer to an inadequate pleading that, hopefully, matters can be sorted out in subsequent directions hearings.
In my view the amended statement of claim is defective as it does not articulate the case or cases of the various subgroups that the applicant claims to represent. I therefore propose to strike out paragraphs 155-159 (inclusive) of the amended statement of claim.
I propose to grant leave for the amended statement of claim to be further amended, and if it is thought appropriate, for the amended application to be further amended, because I do not think that it can be said at this stage that an order should be made under s 33N. The facts suggest that there is at least the potential for the beneficial use of Part IVA. There is at least the prospect that the amended statement of claim could be further amended so as to expose the case sought to be brought on behalf of the various subgroups and so as to demonstrate the appropriateness of proceeding under Part IVA.
SHORT MINUTES OF ORDER
I propose to adjourn the matter to a date to be fixed to enable the parties to bring in short minutes of order to give effect to this decision, and for further directions. Amongst the matters which require further consideration is whether and to what extent s 33J(4) inhibits the making of orders on the present applications.
I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely
Associate:
Dated: 24 November 1998
Counsel for the Applicant: P Hallen
with P.K. EassieSolicitor for the Applicant: Vivian Evans
Uther Webster & EvansCounsel for the fourth, fifth, and seventh Respondents: N.C. Hutley
with M.S. LeemingSolicitor for the fourth, fifth and seventh Respondents: S W Jaggers
Mallesons Stephen JaquesSolicitor for the first and second named third Respondents: N. Agnew
Deacons Graham & JamesSolicitor for the third named third Respondent N. Foate
Middletons Moore & BevinsSolicitor for the first and second Respondents P Stone
Perkes & StoneDate of Hearing: 4 & 5 November 1998 Date of Judgment: 24 November 1998
1
5
0