Parkesinclair Chemicals (Aust) Pty Ltd v Asia Associates Inc

[2000] VSC 182

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5729 of 1997

PARKESINCLAIR CHEMICALS (AUST.) PTY. LTD.	Plaintiff
v.
ASIA ASSOCIATES INC.	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 MAY 2000
DATE OF JUDGMENT:	2 MAY 2000
CASE MAY BE CITED AS:	PARKESINCLAIR v. ASIA ASSOCIATES INC.
MEDIUM NEUTRAL CITATION:	[2000] VSC 182

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CATCHWORDS:      Application to vacate order of a Master whereby the Master ordered that two proceedings be heard together – No justification for vacating the order – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A. Schlicht	Zaparas & Dandanis
For the Defendant	P. Hayes	Arnold Bloch Leibler

HIS HONOUR:

1. I have before me two appeals from orders made by Master Evans on 6 April last whereby the Master dismissed applications made to him by the defendant in each of these proceedings that he vacate orders he had made in each proceeding on 27 March 1998.

1. These two proceedings were instituted in the court by Parkesinclair Chemicals (Aust) Pty Ltd (Parkesinclair) in 1997.  The first proceeding, which is No. 5729 of 1997, is brought by it and its director, Norman Douglas Parkes, against Asia Associates Inc and Shun Kubo.  The second proceeding, which is No. 8436 of 1997, is brought against the Westpac Banking Corporation.

1. On 24 March 1998 Parkesinclair made application to the court for an order that each proceeding be heard at the same time and before the same judge.  In his affidavit sworn 24 March 1998 in support of that application, Parkes stated, amongst other things, that Parkesinclair's claim for damages in each proceeding would involve the same questions, that Parkesinclair would be calling the same witnesses in each proceeding, that the history of trading between Parkesinclair and Asia Associates and the banking arrangements between Parkesinclair and Westpac would be examined in both proceedings.

1. The applications came before Master Evans on 27 March 1998.  My examination of each file does not disclose any answering material filed by the defendants in opposition to Parkesinclair's application.  At all events, that day the Master made an order in each proceeding to the effect that, subject to any directions of the trial judge, the proceedings be heard together.

1. On 16 June 1998 the parties consented to the following orders being made by Master Kings in each proceeding:

1.That discovery in one proceeding be treated as discovery in the other.

2.That subject to any further order of the trial judge, the evidence in one proceeding be treated as evidence in the other.

3.That mediation in each proceeding take place at the same time. 

Thereafter each proceeding was prepared for trial in accordance with those orders.

1. On 29 February 2000 the proceedings came again before Master Kings.  That day the Master made a number of orders including an order that the proceedings be listed for hearing on 6 June 2000 and that they be heard before the same judge.  The Master noted in the orders she made that day that "the defendants wish to preserve their right to submit to the trial judge that the proceedings be heard consecutively".  And so, as matters presently stand, the two proceedings will come before the same judge for trial on 6 June next, leaving it to the trial judge to determine whether they will be heard together or consecutively.

1. However, on 5 April last, the defendants filed summonses in the court by which they sought (inter alia) that the court vacate the previous orders of Master Evans made on 27 March 1998.

1. The summons in each proceeding came before Master Evans on 6 April and each application was dismissed.  It is from those orders that the defendants now appeal to a judge of the court.

1. The defendants contend that Master Evans's orders of 27 March 1998 should be vacated because of what they say are the changed circumstances in the two proceedings.  What is said in that regard is that on 12 April 1996 Westpac appointed Michael Scales as receiver of Parkesinclair.  After Parkesinclair instituted its proceeding against Asia Associates, Asia Associates joined Michael Scales as a defendant to its counter-claim in that proceeding.  By an order of the court made on 21 September 1999, Scales ceased to be a defendant to Asia Associates' counter-claim.

1. It is said that the presence of Scales as a defendant to the counter-claim was the basic factor which induced the Master to make the orders he did on 27 March 1998.

1. But, if one has regard to the Master's reasons for dismissing the defendants' applications to him to vacate his original order as set out in the affidavit of Peter Antoni Clarke sworn 18 April 2000, that is simply not so.  Master Evans made it clear in those reasons that the fact that Scales was a party to Parkesinclair's proceeding against Asia Associates was not a factor which induced him to make the orders he did on 27 March 1998.  In paragraph 6 and following of his affidavit, Mr Clarke has sworn:

"6.In his decision Master Evans stated that, having regard to the affidavit material and submissions by Counsel and from his own memory of his decision in March 1998, he was quite satisfied that the considerations that moved him to make the 1998 orders were not such in which there has subsequently been any change of material circumstance at all."

7.He further said that it was not because Mr Scales was a party to the Asia Proceeding that formed the basis of the 1998 orders but the fact that there were issues in both proceedings to which his evidence and his involvement was relevant.  This involvement had not altered and therefore there was no material change in the circumstances."

1. I have not been persuaded that the removal of Scales as a party to Asia Associates' counter-claim is any reason for interfering with the orders Master Evans made in the proceeding.

1. It will ultimately be a matter for the trial judge to determine whether the proceedings are to be heard together or whether they are to be heard consecutively.

1. In that situation each defendant's appeal is dismissed with costs to be taxed and paid by Westpac in that proceeding and Asia Associates and Kubo in that proceeding.

1. I should formally state that at the outset of the hearing of the application I gave special leave to the plaintiff to rely upon the affidavit of Peter Antoni Clarke sworn 18 April 2000 which set out the Master's reasons for his decision in the matter.  I considered that in the circumstances of this case it was appropriate for the court to have those reasons before it in determining the two appeals.

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