Newington, Jean Edelweiss Alaine v Beneficial Finance Corp Ltd
[1998] FCA 1581
•30 NOVEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 213 of 1990
BETWEEN:
JEAN EDELWEISS ALAINE NEWINGTON AND
GENMAN PTY LIMITED AND JACQUES BONNET
APPLICANTSAND:
BENEFICIAL FINANCE CORPORATION LIMITED
RESPONDENTBETWEEN:
BENEFICIAL FINANCE CORPORATION LIMITED
CROSS-CLAIMANTAND:
GENMAN PTY LIMITED AND JACQUES BONNET
CROSS-RESPONDENTS
JUDGE:
LEHANE J
DATE:
30 NOVEMBER 1998
PLACE:
SYDNEY
THE COURT ORDERS THAT:
The applicants’ motion filed on 30 October 1998 be dismissed.
Paragraphs 11 and 12 of the fifth amended statement of claim be struck out without general liberty to re‑plead, but on the footing that if the applicants wish to plead matters of the kind dealt with in paragraphs 11 and 12 as relevant to the allegation in paragraph 13, or allegations in later paragraphs, then the applicants must seek leave to do so by motion supported by affidavit specifying precisely the material facts sought to be alleged.
The words in paragraph 14D of the fifth amended statement of claim “and the Applicants rescinded the agreement” be struck out, but with liberty to re‑plead on the footing of an allegation of a repudiation by the respondent, accepted by the applicants.
The applicants pay the respondent’s costs of the applicants’ motion.
There is no order as to costs on the respondent’s motion.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 213 of 1990
BETWEEN:
JEAN EDELWEISS ALAINE NEWINGTON AND
GENMAN PTY LIMITED AND JACQUES BONNET
APPLICANTSAND:
BENEFICIAL FINANCE CORPORATION LIMITED
RESPONDENTBETWEEN:
BENEFICIAL FINANCE CORPORATION LIMITED
CROSS-CLAIMANTAND:
GENMAN PTY LIMITED AND JACQUES BONNET
CROSS-RESPONDENTS
JUDGE:
LEHANE J
DATE:
30 NOVEMBER 1998
PLACE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
There are before me two motions. Chronologically the earlier of the motions is that of the respondent and cross-claimant which seeks orders striking out what may be described compendiously as the substantive paragraphs of the fifth amended statement of claim. The later is a motion of the applicants seeking the vacation of the hearing of the respondent's motion and seeking also that both the respondent's motion and the proceedings generally be stood over with liberty to relist for directions on seven days’ written notice, that notice not to be given before 1 April 1999.
The substance of the applicants' motion is thus that no further steps be taken or be required to be taken in this proceeding until a date which could not be earlier than 8 April 1999. It is convenient to deal with that motion before coming to the respondent's strike out motion.
The applicants' motion is supported by three affidavits of Ms Newington, who principally has charge of the conduct of the proceeding for the three applicants. The affidavits are sworn on 6 October, 30 October and 26 November 1998. To the affidavits of 6 October and 30 October there are annexed reports of two medical practitioners who have attended Ms Newington and, in one case, Monsieur Bonnet, the third applicant.
Broadly, the effect of the medical evidence is that Ms Newington has suffered ill health of a reasonably serious nature and of several kinds over a considerable period. It is unnecessary, I think, to go into the detail of it beyond saying that the difficulties which she claims to be likely to experience in preparing for a hearing of this matter are said to result principally from what may be described as muscular skeletal problems of which Dr Rivett gave evidence, both in his written report and in oral evidence. Dr Rivett’s practical conclusions, if I may so describe them, may I think be summarised in this way: Ms Newington is unfit for heavy lifting, excessive bending, prolonged sitting or standing, pushing, pulling and twisting, postural strains or excessive movements of the neck. She is also unfit for excessive, heavy, concentrated, repetitive or above shoulder use of the dominant right upper limb. A consequence of that, according to Dr Rivett, is that she is unfit to bend over and move cases of documents and sort through them at the present time. Dr Rivett refers to further investigations and therapy which may assist Ms Newington over the next several months.
In accordance with directions made on the last occasion when the matter was before me, Ms Newington has also been examined by medical practitioners appointed by the respondent. There is a difference between Ms Newington’s evidence and the reports of those doctors as to the way in which the consultations with them were conducted. That, however, is a matter which I think does not lead anywhere in relation to the present motion and which therefore I need not investigate. One of those practitioners, Dr Bodel, made a report, the essence of which as Dr Rivett accepted in evidence today, is not substantially different (except perhaps by way of emphasis) from the evidence given by Dr Rivett.
It is clear that Ms Newington has the problems referred to by Dr Rivett; it is clear that she requires medication; it is clear that she has difficulties which would inhibit her in prolonged and uninterrupted attention to a large body of documents. What did, however, emerge from Dr Rivett's evidence this morning, I think, was two matters in particular. One was that Ms Newington could reasonably deal with documents in smaller bundles and with adequate breaks. Secondly, Ms Newington would – perhaps, in the case of travel by bus, at some cost in terms of discomfort or pain ‑ be able to attend court and sit in court for some time though with breaks and not perhaps for an excessively long time.
There is a third matter and it is a matter which, as I indicated to counsel, particularly concerns me about this proceeding. I put to Dr Rivett the question whether in his view matters would be substantially better for Ms Newington if activity in relation to this case were to be deferred for a period of several months. His answer was somewhat guarded; he expressed the view that the course of treatment which he considered that it was likely she would be prescribed would offer some assistance, dependent perhaps on the results of further tests to be undertaken. He accepted, however, that any such prognosis was of its nature somewhat speculative and accepted also what might be thought the obvious proposition that much might depend upon what else Ms Newington was undertaking during the period concerned. That circumstance must I think necessarily be weighed together with some aspects of the history of this proceeding.
There have been a number of deferrals and delays occasioned by, among other things, problems with Ms Newington's health. That of itself of course is not a matter which ought necessarily to count against Ms Newington. The difficulty, however, is twofold. The problems Ms Newington has experienced have been ongoing and recurrent; they have already given rise to significant delays and applications for adjournments. Secondly, it is not by any means clear to me that a further adjournment is likely to have the result, having regard to the evidence both in relation to Ms Newington and in relation to Mr Bonnet, that it will be possible for Ms Newington to give attention to the case in four months time to a significantly greater extent than she can today. It may be that the position will significantly improve; but, on the other hand, I must say on the evidence it seems to me that there is a distinct possibility that significant improvement will not occur.
It must also be borne in mind that these proceedings have been in progress, albeit with delays necessarily occasioned by the need to determine related proceedings, since 1990 and relate to events commencing in the early part of the 1980's. There are substantial claims outstanding between the parties. Unless those claims can be settled by agreement, they must be dealt with and they must be dealt with reasonably promptly. For those reasons I am not prepared simply to adjourn the proceeding in the way sought in the applicants’ motion.
The question then arises, what are the appropriate directions to be made for the future conduct of the matter so that it may be heard within a reasonable time and so that both parties will have sufficient opportunity to prepare adequately? In considering that aspect of the case, it is, I think, important to notice that the substantial claims now pursued by the applicants relate to the circumstances in which certain properties were sold after 22 December 1983, and the question whether, in the course of the sale of the properties, the respondent breached a duty owed as mortgagee to obtain a proper price or obligations under compromise agreements resulting in the settlement of earlier proceedings in this Court and in the Supreme Court of New South Wales. By comparison with the matters in issue in what I have called the related proceedings, that is those determined by my judgment delivered on 30 January 1997, the matters in issue in the present proceeding are comparatively limited and are likely to involve a substantially smaller volume of documentary and other investigation. It is appropriate, I think, that I should make directions allowing a reasonable time possibly for the provision of further particulars and certainly for the giving of discovery and the filing and service of affidavits. I think also that I should accede to the suggestion of the respondent that I should fix a hearing date for the case at some time during 1999 and, in making directions for its future interlocutory conduct, work back from the date so fixed. I shall return to the detail of that.
It is appropriate, meanwhile, to consider briefly some matters that arose in submissions made on the respondent's motion seeking to strike out various paragraphs of the fifth amended statement of claim. The respondent sought by that motion to strike out substantive paragraphs of the statement of claim alleging material facts said to be relevant to the applicants’ causes of action against the respondent. This morning, while reserving the respondent’s right to argue at trial matters which would support its motion to strike out a number of other paragraphs of the statement of claim, its counsel pressed for orders striking out only two paragraphs and a portion of a further paragraph of the statement of claim. The two paragraphs sought to be struck out in whole relate to the appointment and activities of a person named Wayne Dunne whose appointment and activities were the subject of extended consideration in my judgment of 30 January 1997 (reflecting of course considerable evidence and argument before me in that proceeding).
The allegations made in those paragraphs are that the respondent as mortgagee of the properties concerned gave possession of those properties to Mr Dunne in order to complete certain building work. Then it is alleged that Mr Dunne was not a builder. If that allegation is intended (as I think it is) to allege that he was not a licensed builder then the allegation accords with a finding made in my earlier judgment. Secondly, it is alleged that Mr Dunne's possession was as agent for, and as representing the interests of, the respondent. The respondent seeks to strike out those paragraphs on the footing that they do not allege material facts supporting any pleaded cause of action. It was suggested also that if they were expanded so that they might become relevant to possible causes of action then necessarily there would be involved a re-canvassing of issues already decided in my earlier judgment.
The applicant submitted that the allegations were relevant to the claim that the respondent sold the properties at an undervalue. It is sufficient, I think, to say at present that I am unable to see how the two paragraphs support that claim. It was put that work done on the renovation of the properties by Mr Dunne, and particularly the condition in which the properties were left as a result of those renovations, were relevant to the performance of the obligation of the respondent to obtain a proper price. But even if that might be so, it is quite plain that the paragraphs as pleaded do not allege material facts that make the necessary connection. I am inclined for that reason to strike out those two paragraphs and I am inclined also not simply to give liberty to replead in relation to those matters. I think the appropriate course is to strike those two paragraphs out and to direct that if the applicants seek to plead matters, in support of its allegation that the properties were sold at an undervalue, relating to the conduct of building work done by Wayne Dunne then the applicants should so move on notice, supported by affidavit, specifying precisely the pleading which the applicants seek to insert by way of amendment.
The other portion of the statement of claim which the respondent now seeks to have struck out is a portion of para 14D which alleges that the applicants rescinded the compromise agreement to which I have already referred, apparently consequent upon certain breaches alleged on the part of the respondent. Counsel for the applicants accepted in argument that rescission is not the right term for what is intended to be alleged, and an allegation that the agreement was rescinded would, I think, be inconsistent with my earlier judgment. What may not necessarily be inconsistent with my earlier judgment is an argument propounded by counsel today to the effect that the pleading might be amended to allege repudiation by the respondent and an acceptance by the applicants of the repudiation.
I think the appropriate course in relation to para 14D is to strike out the words “and the Applicants rescinded the agreement” but with liberty to replead on the footing suggested by counsel for the applicants.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.
Associate:
Dated: 11 December 1998
Counsel for the Applicants: M.K. Rollinson Counsel for the Respondent: M.G. Skinner Solicitor for the Respondent: R.B. Monteith & Co Date of Hearing: 30 November 1998 Date of Judgment: 30 November 1998
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