Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd
[2002] NSWSC 189
•8 March 2002
CITATION: Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 189 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 3081/97; 1750/02 HEARING DATE(S): 8 March 2002 JUDGMENT DATE: 8 March 2002 PARTIES :
3081/97
Peter Lawrence Lewis (P)
Lamru Pty Ltd (Applicant)
Kation Pty Ltd (Respondent)
Brian Raymond Silvia (Liquidator)
1750/02
Lamru Pty Limited (P)
Kation Pty Limited (D1)
Peter Lawrence Lewis (D2)
Mark Lewis (D3)JUDGMENT OF: Hamilton J
COUNSEL : J Baird, Solicitor (P J Lewis & Kation P/L)
S J Motbey (Lamru P/L)
P A Somerset, Solicitor (Liquidator)
M Wilks, Solicitor (M Lewis)SOLICITORS: Kemp Strang (P L Lewis & Kation P/L)
Lyons & Lyons (Lamru P/L)
Abbott Tout (Liquidator)
Corrs Chambers Westgarth (M Lewis)CATCHWORDS: PROCEDURE [105] - Supreme Court procedure - Practice under Supreme Court Rules - Directions - Power to make directions to facilitate just cheap and quick disposal of real issues between parties - Whether consolidated points of claim in identical form should be filed in two proceedings being heard together although one is a statutory appeal under the Corporations Act 2001 (Cth). CASES CITED: Lewis v Nortex Pty Ltd (In Liq) [2002] NSWSC 143 DECISION: Consolidated points of claim in identical form to be filed in both proceedings.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
FRIDAY, 8 MARCH 2002
3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LTD (In Liq)
1750/02 LAMRU PTY LTD v KATION PTY LTD & ORS
JUDGMENT
1 HIS HONOUR: This matter was last before me on 1 March 2002: Lewis v Nortex Pty Ltd (in Liq) [2002] NSWSC 143. Since that time, the following progress has been made. The summons in the fresh proceedings has been issued and numbered 1750/02. The statutory appeal (proceedings 3081/97) continues to progress before me. I shall henceforward adopt, basically, the nomenclature of the new proceedings. Lamru Pty Ltd will be referred to as "the plaintiff"; Kation Pty Ltd, Peter Lawrence Lewis and Mark Lewis, as the defendants; and the liquidator will continue to be referred to in that way.
2 Pursuant to my directions, the plaintiff filed points of claim in each of the two sets of proceedings. However, contrary to what I intended, they were filed in a slightly different form in each set. Re-reading my judgment and directions, although my intent was clear to me, I can understand that it was less than clear to the plaintiff. My intention was that there should be one set of points of claim entitled in both matters to be placed on the file in each matter, but setting out all the claims to be made in both proceedings. That was also the understanding of Mr Baird, the solicitor for the first and second defendants. He made various complaints about the form of the points of claim arising from, but not limited to, this misunderstanding.
3 The result of debate about this is that I now propose to make the following further directions.
- (1) I direct that on or before 11 March 2002 consolidated points of claim in the same form be filed in each of the two sets of proceedings encompassing a full and compendious statement of all matters to be alleged and relied on by the plaintiff in both sets of proceedings.
(2) I further direct that the precise amount of each deficiency or claim relied on be specified in money terms in the points of claim and that where any such deficiency is claimed to be allowed in the plaintiff's favour on the statutory appeal that is to be specifically so stated.
(3) I further direct that the prayers in the summons be incorporated in the consolidated points of claim and I direct that the plaintiff inform the defendants on or before 11 March 2002 whether or not prayers 1 and 2 in the summons will be pursued.
(4) I order that when the two sets of proceedings are heard together the evidence in the one shall be evidence in the other so far as relevant.
4 I have indicated to Mr Motbey, of counsel for the plaintiff, that it appears to me that the plaintiff can recover no more under prayers 1 and 2 of the summons than it could recover under prayer 3. The removal of prayers 1 and 2 would preclude the necessity for certain defences and perhaps the joinder of additional parties. I have invited him to abandon prayers 1 and 2 if he considers that possible. If the plaintiff, on his advice, feels obliged to maintain those prayers, I have invited him to indicate that they will not be pursued at the present time, but upon the basis that he may apply to rely on them if, at any stage of the proceedings, it appears that the plaintiff may recover more under those prayers directly or indirectly than it can recover under prayer 3. If Mr Motbey is willing to follow this course, the proceedings should then be conducted on the basis that those prayers are not relied on and defences that go only to them need not be filed, even if the prayers are included in the consolidated points of claim. The need for order (4) is that Mr Baird has drawn to my attention that, when I ordered the proceedings to be heard together I, omitted to add the conventional order as to evidence, which is now done.
5 The next step necessary after the filing of the consolidated points of claim is the filing of points of defence. The first and second defendants and the liquidator are obviously willing to apply themselves diligently to the matter and have indicated they anticipate their defences may be filed within seven days after the service of the consolidated points of claim. Mr Wilks, solicitor for the third defendant, is in a different situation; he is new to this very complex matter, his clients having been served with the summons only yesterday. I have decided nonetheless that the appropriate course is to direct the third defendant to file a defence at the same time as limited in respect of the other defending parties. However, it will be understandable if he is unable to do this. He should make every endeavour in that regard and explain to the Court on the next occasion that the matter is before the Court for directions what his position is. If, in the meantime, he decides that he needs particulars of the consolidated points of claim, he should, without waiting for the next occasion, write for them immediately.
6 The further orders that I make are:
(5) I direct the defendants to file points of defence and points of cross claim on or before 18 March 2002.
(6) I direct that the plaintiff file an amended notice of motion in proceedings 3081/97 specifying the amount now claimed by it in those proceedings.
(7) The proceedings are stood over to 9.30am on 21 March 2002 before me.
(8) Save that I refuse to make any special order for costs in favour of the third defendant because the summons was served one day late costs are reserved.
2