Orix Aust Corp Ltd v Cmv Truck Sales & Ors No. DCCIV-97-1093 Judgment No. D135

[1999] SADC 135

ORIX AUSTRALIA CORPORATION LTD V TALBOT & ORS
[1999] SADC D135

Judge Anderson
Civil

1. This is an appeal from an order of a District Court Master made the 5th of July 1999.  The Master ordered, upon the application of the fifth defendant and pursuant to District Court Rule 75.02(b), that there be a separate trial of what he described as the preliminary question relating to the claim for conversion set out in paragraphs 17A-24 of the second further amended statement of claim.

2. The Master made his order after he had conducted the hearing of the application on three separate occasions with the benefit of separately ordered written submissions.  Between the second and third dates upon which the Master formulated written reasons the plaintiff amended the statement of claim to add a further claim for loss. 

3. In the first part of his reasons the Master set out the thrust of the plaintiff’s claim against the defendants.  At the appeal, neither Mr Slattery of counsel for the appellant nor Dr Baxter of counsel for the respondent took significant issue with this analysis.  Consequently, I shall adopt it without restating the contents of the plaintiff’s pleading.

4. In determining an appeal such as this, even though it has the characteristics of a re-hearing, I am not to simply disregard the Master’s reasoning and the exercise of his discretion and substitute my own.  I should only interfere if I am of the view that the Master has erred in some relevant and significant way.

5. By the conclusion of his consideration of this matter the Master was persuaded that the correct course was to grant the application.  This decision was reached despite an earlier expressed view that he was not disposed to grant the application.  From the written reasons it seems that the plaintiff’s action in amending the statement of claim to introduce another issue and thereby lengthen the trial was quite decisive of the final conclusion.  The Master accepted the submission of the fifth defendant that there were no other issues in the trial from the pleadings which impinged upon the issue of conversion.  He accepted that this was an issue which did not involve the applicant fifth defendant and, once of the opinion that the trial would be longer, made the order sought.

6. Dr Baxter has submitted that such a course was reasonably open to the Master.  He submitted that the conversion issue must be first in point of time because no question of tortious loss could arise upon the balance of the mis-representation pleadings until some loss or damage arose in relation to the truck, the subject of the alleged conversion.  He submitted that there were no issues of credit which effected the separateness of this issue so as to require the fifth defendant to be present at that hearing.  In this regard he repeated the fifth defendant’s earlier given undertaking to be bound by whatever valuation finding was made at the initial hearing when the mis-representation trial was heard.  Similarly, he asserted that there were no pleadings - cross or otherwise - which in any way drew the fifth defendant into the dispute between the plaintiff and the first four defendants on this topic.

7. In his submissions, Mr Slattery asserted that it could not be said, as the Master had concluded, that the conversion topic was definitely so separate from the claim for damages otherwise pleaded that it could be successfully separated.  He submitted that there was a real likelihood, because of the pleadings alleging that the fifth defendant had some role in the approach to,  and the information provided to the plaintiff prior to the initial approval of finance, that factual issues would arise and require to be resolved before the conversion issue could be concluded.  Should this be so, then of course, there would be significant difficulties confronting the trial Judge and the Master’s orders would need to be reviewed.  Such a result would increase, not decrease, costs.

8. Mr Slattery submitted that the likelihood of requiring some findings of this type is heightened by the cross pleadings introduced by the various contribution notices. 

9. The Master seems to have been significantly influenced in reaching his final conclusion by the suggested length of trial consequent upon the plaintiff’s amended statement of claim.  He had regard to what he saw as unnecessary costs which would be put upon the fifth defendant if the trial took longer.  In my opinion the Master has over emphasised the certainty which he has attached to the conversion issue being untainted by the need for findings of fact likely to require evidence from the parties other than those whom he saw as somewhat in isolation on this issue.  In addition, he has placed too much emphasis upon the costs to the fifth defendant of the trial of this issue, and has ignored the fact that such matters are far better controlled by the trial Judge closer to trial when all matters are much clearer.

10. The Master also ignored the fact that to adopt a course as he ordered allows appeals on the issue prior to completion of the whole trial.  Such a result should be avoided if at all possible.  Any appeal should relate to the whole trial.

11. Consequently, I am of the view that the Master fell into error when he granted the application of the fifth defendant.  If the matter is properly managed by the trial Judge then the likelihood of wasted costs of attendance at trial will be reduced to a minimum and all issues will be resolved within the one hearing.  It is presently too early to adopt a course which significantly undermines such an approach.  In order to ensure adequate and early trial management, the parties may seek the early nomination of the trial Judge in order that the most economical hearing might be planned.  Any such request should be directed to the Chief Judge and may refer to this decision in the context of the pleadings.  It is trite to say that when such an approach is made all parties should have taken advice on evidence thereby ensuring that the real issues are more readily discernible than presently.

12. The appeal is allowed for the purpose of setting aside the order of the Master made the 5th day of July 1999, and ordering that the application of the fifth defendant be refused.

13. The plaintiff is to have its costs of this appeal and of the hearing below to be agreed or taxed.  Fit for counsel.