Queensboro Pty Limited v Butler Pullnow Pty Limited

[1999] NSWSC 198

CITATION:	Queensboro Pty Limited v Butler Pullnow Pty Limited [1999] NSWSC 198 revised - 31/08/99
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	3231/87
HEARING DATE(S):	15 March 1999
JUDGMENT DATE:	15 March 1999
PARTIES :	Queensboro Pty Limited (P) Butler Pullnow Pty Limited (D1) Butler Pullnow Financial Services (D2) Errol Pullnow (D3) Richard Butler (D4) Butler Pullnow Pty Limited (Cr-cl 1) Errol Pullnow (Cr-cl 2) Queensboro Pty Limited (Cr-D 1) Garden Mews St Leonards (Cr-D 2) Bay Road Properties Pty Limited (Cr-D 3) Lake Village Apartments Pty Limited (Cr-D 4) Rosalind Gardens Pty Limited (Cr-D 5) Bydown Gardens Pty Limited (Cr-D 6) Ash Street Properties Pty Limtied (Cr-D 7) Alexander Barclay Shand (Cr-D 8) Allan Gordon Coogan (Cr-D 9) Alan Ivor Terrell (Cr-D 10) Warren Walter Madgwick (Cr-D 11) Anthony Gardiner Sherlock (Cr-D 12) Paul Dean Ramsbottom Isherwood (Cr-D 13)
JUDGMENT OF:	Master McLaughlin

COUNSEL :
SOLICITORS:	Soloman Garland Partners (P) Smits Leslie (Ds)
CATCHWORDS:
DECISION:	See paragraph 5

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SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 5 March 1999

3231/97 QUEENSBORO PTY LIMITED -v- BUTLER POLLNOW PTY LIMITED

JUDGMENT

1    MASTER: By notice of motion filed on 24 February 1999 the cross-claimants Butler Pollnow Pty Ltd and Errol Pollnow seek, substantively, an order for judgment against Alexander Barclay Shand, the eighth cross-defendant and Alan Gordon Coogan the ninth cross-defendant on the first and second cross-claims. At the commencement of the hearing I stated and had it recorded that I am acquainted with the eighth cross-defendant, Alexander Barclay Shand. That factor caused no problem to either the cross-claimant or the eighth and ninth defendants to my hearing the present application. 2    Mr John Leslie, solicitor for the cross-claimants, at the commencement of the hearing stated that he had already made to Mr Gorezyca, the solicitor for the eighth and ninth cross-defendants, an offer which he wished now to repeat in open Court as an open offer to those parties. The open offer was that the cross-claimants would allow the eighth and ninth cross-defendants a further fourteen days in which to file their defences to the first and second cross, claims but that in the event that they did not file their defences within that period there would be judgments against those cross-defendants on the cross claims, and that the cross-defendants should pay the costs of the cross-claimants of the present notice of motion. 3    Mr Gorezyca, although agreeable to two of the components of that open offer (being the filing of the defences within fourteen days and the order for costs), did not at that stage accept the open offer which had been made by Mr Leslie. 4    After the conclusion of the submissions by the respective legal representatives of the parties to the notice of motion I commenced to deliver an ex tempore oral judgment. Very shortly after I had so commenced Mr Gorezyca informed the Court that he on behalf of his clients was prepared to accept the open offer which had been made by Mr Leslie. It became unnecessary for me therefore to proceed to a completion of my reasons for judgment or to express any conclusions as to what my order would have been if the matter had proceeded to a completion of my reasons for judgment herein. 5    Accordingly, I now make the following orders which are consequent upon the open offer made by Mr Leslie and the acceptance by Mr Gorezyca of that open offer and which are in a form which has been expressed by both gentlemen to accord with their understanding of the terms of that open offer and of the acceptance thereof. I make the following orders:

(1) I order that the eighth and ninth cross-defendants file and serve their defences to the first and second cross claims on or before 29 March 1999.
(2) I order that, in the event that the eighth and ninth cross-defendants do not file and serve their defences to the first and second cross claims on or before 29 March 1999, judgment for damages and/or for equitable compensation in amounts to be assessed, together with interest thereon, be entered for the cross-claimants upon those cross claims.
(3) I order that the eighth and ninth cross-defendants pay the costs of the cross-claimants of the notice of motion filed by the cross-claimants on 24 February 1999, such costs to include the costs reserved by the Registrar on 8 March 1999.
(4) I grant leave to the cross-claimants to proceed forthwith to assessment of the foregoing costs.

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Last Modified: 06/30/2000