In the matter of Cosmas Pty Ltd

[2017] NSWSC 1654

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Cosmas Pty Ltd [2017] NSWSC 1654
Hearing dates:	14 December 2017
Date of orders:	14 December 2017
Decision date:	14 December 2017
Jurisdiction:	Equity - Corporations List
Before:	Brereton J
Decision:	Interlocutory process dismissed with costs
Catchwords:	PRACTICE AND PROCEDURE – consolidation of proceedings
Category:	Procedural and other rulings
Parties:	Katina Cominos (plaintiff) Victor Charles Comino (first defendant) Marianne Casimatis (second defendant) Cosmas Pty Ltd (third defendant) Mitchell Ball (fourth defendant) John Hefferan (fifth defendant)
Representation:	Counsel: Dr C Birch SC (plaintiff) J Lockhart SC with C McMeniman (first defendant) M Condon SC (second defendant)   Solicitors: JSM Lawyers (plaintiff) Back Schwartz Vaughan (first defendant) Thurlow Fisher Lawyers (second defendant)
File Number(s):	2017/83015

Judgment (ex tempore)

1. The plaintiff Katina Cominos has brought two proceedings against her son Victor Comino.

2. The first (numbered 201725259), which is called the "Life Estate proceeding", was instituted on 25 January 2017. In that proceeding, in addition to Victor, his wife Mrs Comino, is a defendant. They are the registered proprietors of a property at Brighton in which the plaintiff Katina claims an equitable life estate or right of residence pursuant to doctrines such as equitable estoppel and constructive trust, and in addition damages (including exemplary damages) for trespass arising from her ejectment from the property early this year, which triggered the institution of the proceedings.

3. The second proceeding (numbered 2017/83015), which is called the "Trust proceeding", and is the proceeding currently before me, was instituted on 17 March 2017. In addition to Victor, the plaintiff's daughter Marianne, the company Cosmas Pty Ltd, and two accountants Mitchell Ball and John Heffernan, are defendants. However Messrs Ball and Heffernan are not active parties, and it is not anticipated that they will play any role in the proceedings. In the Trust proceeding, Katina claims declarations and orders in relation to her ownership of one of three issued shares in Cosmas, which was the owner (as trustee of a trust) of a property development in King Street to which Katina is said to have contributed $1.1 million upon the faith of representations said to have been made to her by Victor.

4. The two proceedings were commenced separately, in different lists: the Trust proceeding in the Corporations List, and the Life Estate proceeding originally in the Real Property List, although it has since been transferred to the General List. They have, to this point, been separately managed. The Life Estate proceeding has been set down for hearing, apparently over the opposition of the plaintiff, for four days in May 2018. By interlocutory process filed in the Trust proceeding on 3 November 2017, Katina now seeks to have the proceedings managed and heard together, and the hearing allocated for the Life Estate proceeding vacated, and consequential directions.

5. Reduced to their essence, Katina’s contentions are that both proceedings are manifestations or elements of an underlying family dispute (together with a third as yet inchoate proceeding which she proposes to bring, by amendment of the Life Estate proceeding); that her ejection from the Brighton property, which precipitated the Life Estate proceeding, was itself triggered by her attempts to enforce her interests in respect of the company Cosmas; that each proceeding involves allegations of representations made to her by Victor and relied upon by her in circumstances where she reposed trust and confidence in him, such that the cross-examination of Victor in the Life Estate proceedings will inevitably extend to his conduct in respect of the company and the trust; and that the facts of the Trust proceedings are relevant to her claim for exemplary damages for trespass in the Life Estate proceedings. For Katina, it is submitted that the witnesses are common to both proceedings, and that time and cost will be saved and efficiencies gained by their being heard together.

6. In essence, the submissions for Victor are that the two proceedings involve discrete issues and discrete claims for relief; that the pleaded causes of action involve no common material facts; that any overlap in the evidence is peripheral; and that if there is overlap, it could be addressed by deferring the trespass claim, and using the days allocated in May 2018 for determination of the Life Estate claim apart from the claim for damages.

7. Marianne has brought a cross-claim in the Trust proceeding, which has much in common with Katina's claim in that proceeding. She supports Katina's application that the proceedings be managed together, and points to the fact that her affidavit made and served in the Life Estate proceeding (in which she is a witness but not a party) refers to the issues in the Trust proceeding.

8. This is not an application in which there is nothing to be said for any of the perspectives that are presented. There is something to be said for the view that there would be efficiencies in the matters being heard together. There is also something to be said for the view that taking that course will almost certainly result in the delay of the resolution of the Life Estate proceeding.

9. As it seems to me, the important factors include, first, that while some the facts underlying the Trust proceeding are, to some extent, relevant to the claim for exemplary damages for trespass in the Life Estate proceeding, they are so only in a limited way. As I understand it, it is alleged that exemplary damages are warranted inter alia because the ejectment of Katina from Brighton was malicious, being a reprisal for Katina having asserted her rights in respect of the trust of which Cosmas is trustee. That may well raise, as an issue in the Life Estate proceeding, the facts that there was a dispute in respect of the trust, and that Katina was asserting her rights in respect thereof. But it does not, as it seems to me, raise in the Life Estate proceeding the merits of the underlying dispute concerning the trust.

10. A second significant factor is that the cross-examination of Victor in the Life Estate proceeding is likely to traverse many of the facts relevant to the Trust proceeding. His credit, like that of Katina, will plainly be in issue in the Life Estate proceeding, and cross-examination as to his credit may and no doubt will extend beyond the facts of the Life Estate proceeding themselves to his conduct in other respects. One can easily see how such cross-examination may involve his relationship with his mother more generally, his making of representations to her, his knowledge or anticipation that she would rely on representations made by him, and so on. That said, insofar as it extends beyond the facts of the Life Estate proceeding to matters relevant only to credit, it will be cross-examination as to credit, with the constraints, limitations and controls that that involves.

11. A third relevant factor is that although the possibility of the matters being heard together had previously been adverted to by the plaintiff, no application to adopt that course was made before the Life Estate proceeding was set down for hearing. Until the present application, the plaintiff was content for the cases to follow their separate tracks.

12. Fourthly, to order that the proceedings be heard together now would, in my view, undoubtedly imperil the fixture for May of 2018. It would significantly expand the issues to be addressed in that fixture, almost certainly render the reservation of four days as presently fixed inadequate for its hearing, and almost inevitably require vacation of that hearing and appointment of a later date for a longer trial.

13. Finally, and I think not unimportantly, in circumstances where the Life Estate proceeding was set down for hearing over the opposition of the plaintiff at the time, the present application savours of a collateral attack on the decision then made to reject the plaintiff's opposition to the matter being set down and to fix it for hearing.

14. As I have said, there is something to be said for both positions in this application. There would in my view be some though limited efficiencies gained from hearing both matters together. Against that, there would be delay incurred in the resolution of the discrete issues particular to the Life Estate proceeding.

15. Sometimes, the course selected by a party has consequences. It may well be that had these proceedings been commenced together, an application to sever them would have failed. It may well also be that had an application been made, before the Life Estate proceeding was set down for trial, for both proceedings to be heard together, it might have succeeded. But it seems to me that, the proceedings having reached the stage they now have, the injustice to the defendants of delaying the resolution of the Life Estate proceeding which has been fixed for hearing outweighs any injustice that would be involved in holding the plaintiff to the course that she originally adopted by commencing separate proceedings and persisting in that course until after one of them had been set down.

16. For those reasons, the Court orders that the interlocutory process be dismissed with costs.

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Decision last updated: 15 January 2018