R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd

[2008] NSWSC 232

CITATION:	R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232
HEARING DATE(S):	17/9/07-21/9/07
JUDGMENT DATE :	11 April 2008
JURISDICTION:	Equity
JUDGMENT OF:	Bryson AJ
DECISION:	(1) Order pursuant to UCPR 13.4 that the proceedings be dismissed. (2) The plaintiffs are to pay the defendants’ costs of the Notice of Motion of 18 August 2006 and of the proceedings generally.
CATCHWORDS:	PRACTICE and PROCEDURE - summary disposal - Anshun defence where additional claim made in Federal Court when other claims arising from same transactions were pending in Supreme Court - plaintiffs' claims in Supreme Court had been commenced under earlier Deed of Release which required proceedings to be brought within defined time in Supreme Court and released other claims - plaintiffs' claims in Supreme Court proceedings were released for large payment under Settlement Deed - on review of facts, held that the plaintiffs acted unreasonably in bringing Federal Court proceedings, which should be summarily dismissed: alternatively, stayed as abuse of process
LEGISLATION CITED:	Trade Practices Act 1974 (Cth) s.82, 87
CASES CITED:	Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Cromwell v County of Sac (1876) 94 US 351 Currabubula Holding Pty Ltd v Mita Copiers Australia Pty Ltd (FCA Burchett J unreported 5 May 1995) Custombuilt Homes Pty Ltd v Dowell [2005] WASCA 221 Henderson v Henderson by Wigram VC (1843) 3 Hare 100 Johnson v Gore Wood & Co. [2002] 2 AC 1 at 59 Port of Melbourne Authority v Anshun Pty Ltd [No.1] (1981) 147 CLR 589 Tanning Research Laboratories Inc. v O’Brien (1990) 169 CLR 332 Triantafillidis v National Australia Bank (1995) V ConvR 54-536 Walton v Gardiner (1993) 177 CLR 378 Zavodyix v Alex Constructions Pty Ltd [2005] NSWCA 438
PARTIES:	R&J Lyons Family Settlement Pty Limited - First Plaintiff Geoffrey Charles Talbot - Second Plaintiff 155 Macquarie Street Pty Limited - First Defendant Ranec Pty Limited - Second Defendant
FILE NUMBER(S):	SC 1012/2007
COUNSEL:	J Simpkins SC and S Phillips - Plaintiffs M McCulloch SC, Ms P McDonald and D Sulan - Defendants
SOLICITORS:	Galilee Solicitors - Plaintiffs Henry Davis York - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Friday 11 April 2008

1012/2007 R & J Lyons Family Settlement Pty Ltd & Anor v 155 Macquarie Street Pty Ltd & Anor

JUDGMENT

1 HIS HONOUR: The defendants’ Notice of Motion in these proceedings was heard at the same time as proceedings 1652 of 2006 in a hearing which began on Monday 17 September 2007 and concluded on Friday 21 September 2007; with written submissions thereafter. I heard argument in the present case on Thursday 20 September 2007.

2 The present proceedings were commenced in the Federal Court of Australia, New South Wales Registry No. NSD 1390 of 2006 on 21 July 2006, shortly before the sixth anniversary of sublease registered 825831 1P. The respondents, defendants in this Court, applied to the Federal Court by Notice of Motion of 18 August 2006 for an order:

1. That the application filed 21 July 2006 be summarily dismissed or permanently stayed.

3 On 24 October 2006 the Federal Court of Australia (Madgwick J) [2006] FCA 1435 ordered that the proceedings be transferred to this Court.

The applicants now plaintiffs filed an Amended Statement of Claim on 6 July 2007 and the respondents now defendants filed Defence on 12 September 2007.

4 The grounds on which summary dismissal is sought are:

First, the plaintiffs are estopped from bringing this claim as they are in breach of the extended principle of estoppel in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

Secondly, assuming that estoppel is not established, the claim is an abuse of process of the Supreme Court.

5 These reasons should be read with my judgment and findings in proceedings 1652 of 2006, also published today. The claims made and adjudicated on in those proceedings and some of the elaborate history of that litigation appear in those reasons. Some matters now significant, more fully referred to in those reasons, are these:

The agreement for sublease was made on 25 July 2000;

Before the sublease was granted on 24 July 2001 disputes arose among the present parties and Lend Lease Developments Pty Ltd which was then in the same interest as the defendants. Among these disputes were disputes relating to:


1. Environmental wind issues, which were said to affect the viability of the proposed food and beverage outlets in the Piazza;

2. Access to hydraulic services to allow completion of fitout;

3. Availability of kiosks and approval of kiosks by Sydney City Council.

6 The Variation Documents entered into on 24 July 2001 followed an agreement reached at a meeting held on 11 July 2001; the arrangements made in the Variation Documents were much more detailed. Clause 3 of the Deed of Variation of Agreement for Sublease provided in part:

3. VARIATION OF AGREEMENT FOR SUB-LEASE
The parties agree that the Agreement for Sub-Lease is varied as follows:
(a) Contribution to works in respect of wind
The Landlord agrees to pay the Tenant an amount of up to $200,000.00 inclusive of GST as a contribution to any physical works carried out by the Tenant or caused to be carried out by the Tenant to the Licensed Space as shown on the Plan in Exhibit 2 to the Lease to enhance the amenity of this area in relation to possible wind issues. Those works will be subject to the Landlord’s approval and statutory approvals must be obtained by the Tenant and at the cost of the Tenant. Upon receipt of a valid tax invoice in respect of any such work being completed the Landlord shall pay the supplier for the cost of the works. The obligation by the Landlord to pay the amount of up to $200,000.00 inclusive of GST will cease on 16 July 2003.
(b) Legal costs
Provided that the Landlord has received a valid Tax Invoice, the Landlord agrees to pay the Tenant the sum of $100,000.00 inclusive of GST on execution of this Deed for the Tenant’s legal costs in respect of the disputes which have arisen in respect of the Agreement for Sub-Lease.
(c) Kiosks
(i) Notwithstanding anything contained in the Lease the parties agree that the Tenant is responsible for obtaining all necessary approvals for any Kiosk to be placed in the Exclusive Use Licensed Space.

7 Clause 3 contained further provisions dealing with kiosks. There were also provisions for varying the lease to insert provisions to the same effect. The Agreement for Variation of Agreement for Sublease also resolved other matters in dispute.

8 The sublease provided for a rent-free period; this was varied and under new cl 3.1(i) payment of rent and other charges was to be made in respect of the period commencing 1 February 2002.

9 The plaintiffs did not pay rent throughout 2002 as they saw the payment of rent as interrelated with disputes relating to the provision of hydraulic services for the Piazza. This was the subject of communications and meetings throughout 2002 and became acute about August 2002. On 31 October 2002 the plaintiffs commenced proceedings in the Equity Division and obtained an ex parte injunction restraining the defendants from enforcing a bank guarantee for rent, and from re-entry. The injunction proceedings were settled on 24 December 2002 when the parties entered into a Deed of Release. The many provisions of this Deed included provisions obliging the plaintiffs to comply with all obligations of the sublease, to commence to make payments of rent on 1 February 2003, and to pay $100,000 forthwith as part payment of unpaid rent for the period prior to 1 January 2003. If the plaintiffs did not bring damages proceedings by 15 March 2003 they were to pay all moneys payable under the sublease which accrued as at 15 March 2003 and to pay $100,000 as part payment of the defendants’ costs relating to the dispute. Among the plaintiffs’ obligations were the following:

2.4 The Lessee must file and serve proceedings in the Supreme Court of New South Wales in relation to its alleged damages claim for all entitlements to damages that the Lessee now has pursuant to, or in connection with, the Sub-Lease and the Lessee’s occupation of the Premises by no later than 15 March 2003.
2.5 The Lessee must prosecute its claims in the Supreme Court of New South Wales with all due diligence and expedition.
…

2.7 (a) The Lessee warrants that the design of its fitout of the Premises and the use of the Premises by the Lessee, any sub-tenants or any third parties has been undertaken in complete and full reliance of the Lessee’s own enquiries, information and investigations and at no time has it relied upon any information, representations, documents or statements whatsoever of the Lessor or its agents in the design of the Premises and its use of the Premises including any requirement in relation to any current or future penetrations which have been based upon the Lessee’s current fitout plan.

(b) The Lessee’s warranty provided in clause 2.7(a) does not extend to express or implied representations as to the legal entitlement of the Lessee to penetrate the slab or to any alleged representation made in the meeting on 19 April 2002 or anything contained in the Agreement for Sub-Lease, the Sub-Lease or the Deed of Variation.

10 The proceedings commenced on 31 October 2002 were commenced with urgency by Summons to deal with a claim to restrain action to enforce guarantees. This was not litigation in which it could be said that the plaintiffs ought reasonably to have brought forward all their claims including the present claim. The terms on which that litigation was settled in the Deed of Release of 24 December 2004 reflect the clear understanding that there was to be a further lawsuit; there was an exclusion from the warranty in cl 2.7 for matters which it was contemplated would be dealt with in forthcoming litigation.

11 Compliance with cl 2.4 and cl 2.5 would have required any claims such as those made in these proceedings to be made and prosecuted in proceedings commenced in this Court by 15 March 2003. The warranty in cl 2.7 is in effect a warranty that there were no such claims.

12 In accordance with cl 2.4 proceedings 20065 of 2003 were commenced on 14 March 2003 in the Common Law Division. These proceedings were later transferred to the Equity Division as 1652 of 2006. The course of those proceedings largely appears from my reasons in that case. There was a mediation on 2 December 2005, shortly before a date appointed for hearing, and as a result of the mediation the parties to those proceedings entered into a Deed of Settlement dated 3 December 2005.

13 Among many other provisions the Deed of Settlement contained this release:

2.3 Release by R&J Lyons, Lyons Brothers and Mr Talbot
Upon the execution of this Settlement deed R&J Lyons, Lyons Brothers and Mr Talbot:
(a) Release each of 155 Macquarie and Ranec from all claims, actions and causes of action (including any claim for costs), present and future, relating to the Easement Proceedings, the Gaming Proceedings and the Heads of Agreement.
(b) agree that 155 Macquarie and Ranec may plead this Deed to bar any claim, action or cause of action (including any claim for costs) brought by R&J Lyons, Lyons Brothers and Mr Talbot relating to the Easement Proceedings, the Gaming Proceedings and the Heads of Agreement.
(c) agree not to commence or maintain any claim, action or cause of action (including any claim for costs) against 155 Macquarie and Ranec relating to the Easement Proceedings, the Gaming Proceedings and the Heads of Agreement.
(d) agree to indemnify 155 Macquarie and Ranec against any liability, loss or costs arising from a breach of paragraph (c); and
(e) agree to ensure that any person with whom it is associated in any way does not commence or maintain any claim, action or cause of action (including any claim for costs) against 155 Macquarie and Ranec relating to the Easement Proceedings, the Gaming Proceedings and the Heads of Agreement.

14 The Deed also provided:

6.3 Reliance on their own information
Each party to this Deed acknowledges that they enter into the Deed voluntarily upon their own information, investigation and legal advice. They acknowledge that they may learn new or different information with respect to the Easement Proceedings and the Gaming Proceedings and that it is their intention to, and they do, fully and finally settle all claims, actions and causes of action which may now exist, or may ever exist or may ever have existed in relation to the Easement Proceedings and the Gaming Proceedings.

15 Some of the issues in proceedings 1652 of 2006 were disposed of as separate questions in June 2006 by Windeyer J. and the Court of Appeal. Thereafter on 4 July 2006 the plaintiffs sought and obtained leave to amend the Further Amended Statement of Claim. They did not in their application seek to raise the matters alleged in the Statement of Claim in the present proceedings which they commenced in the Federal Court later that month on 21 July 2006.

16 In their Amended Statement of Claim in the present proceedings the plaintiffs seek an order pursuant to s 87 of the Trade Practices Act 1974 (Cth) for the defendants to undertake or implement wind rectification measures, and they also seek damages including damages pursuant to s 82 of the Trade Practices Act. The wind rectification measures which they seek are for the most part measures provided for in a document referred to as the MEL Consultants Report 26A/98 addendum to MEL Report 26/98 by J.C.K. Cheung and W.H. Melbourne dated 20 September 2000; and are defined by reference to figure 5 in that report. They also seek the installation of an additional six planter boxes. The allegations in the Amended Statement of Claim are extensive but they include allegations to the effect that before the plaintiffs entered into the agreement for sublease of 25 July 2000 the defendants gave warranties or alternatively made representations about fitness for purpose and absence of effect of environmental wind conditions; the warranties or representations are stated at length in para 11 of the Amended Statement of Claim. Particulars show that it is alleged that these warranties or representations were given or made impliedly; no express communication is alleged. The claims for relief were then founded on provisions of the Trade Practices Act. On their face the claims made are inconsistent with the warranty in cl 2.7 of the Deed of Release of 24 December 2002. This is not necessarily inconsistent with success in a claim under the Trade Practices Act.

17 In the proceedings commenced in the Common Law Division the plaintiffs made a number of claims including claims falling within exception (b) to the warranty in cl 2.7(a) of the Deed of Release. They did not make a claim in any way represented by the claim made in these proceedings, although the Statement of Claim was amended on several occasions. No claim or possible claim relating to environmental wind issues was referred to expressly in the Deed of Settlement of 3 December 2005 reached after mediation in which the plaintiffs’ claims in that litigation were disposed of. The plaintiffs obtained a large payment and gave releases for all the claims they had then brought forward. All claims then made, and all claims which could be made appeared to have been completely closed off and finalised by the terms of the Deed of Settlement of 3 December 2005 and the associated warranties

18 In bringing the present proceedings the plaintiffs raised claims which were the subject of negotiation and apparent resolution on 24 July 2001. The claims fall within the warranty against reliance on representations in the Deed of 24 December 2002. They were not brought forward in the litigation the commencement of which was provided for in that Deed, either as first filed or in any of several later amendments. They were not brought forward or dealt with in the Deed of Settlement of 3 December 2005, which contained what appeared to be general releases of claims which related to the litigation then pending, which dealt with subjects which had been established under the Deed of 24 December 2002. The Deed of Settlement in effect disposed of all the plaintiffs’ claims, and the plaintiffs did not bring them forward at the hearing of that litigation before me; if they had done so they would have been met by defences founded on the Deed of Settlement.

19 The principle stated in Henderson v Henderson by Wigram VC (1843) 3 Hare 100 at 114-115, 67 ER 313 at 319 is applied in Australia not directly according to the terms stated by Wigram VC but in accordance with the authority of Port of Melbourne Authority v Anshun Pty Ltd [No.1] (1981) 147 CLR 589 at 602-3 (Gibbs CJ, Mason and Aickin JJ). See also Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502. The effect of the decisions was restated in Zavodyix v Alex Constructions Pty Ltd [2005] NSWCA 438 by Handley JA at [34].

34 It is also appropriate to consider the proprietors’ alternative case based on an Anshun estoppel. In Anshun the Authority was held estopped from enforcing a contractual indemnity against a co-tortfeasor by the existence of cross-judgments for contribution given in earlier proceedings. The majority (Gibbs CJ, Mason, Aickin JJ) stated the principle in terms quoted below which I have adjusted for the facts of this case (147 CLR at 602-3):

“… there will be no estoppel unless it appears that the matter relied upon … was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking it would be unreasonable not to plead [an alternative claim] … if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the [plaintiff] would raise the [claim] and thereby enable the relevant issues to be determined in the one proceeding. In this respect we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.”

20 The principle operates with respect to settlements of claims; see Johnson v Gore Wood & Co. [2002] 2 AC 1 at 59 (Lord Millett).

21 Counsel for the plaintiffs referred me to a number of expressions of judicial opinion relating to the care exercised in applications for summary disposal, including some which particularly address summary disposal on Anshun principles: Currabubula Holding Pty Ltd v Mita Copiers Australia Pty Ltd (FCA Burchett J unreported 5 May 1995) at paras [2] and [3], Triantafillidis v National Australia Bank (1995) V ConvR 54-536 at 66-367 (Ormiston JA), Custombuilt Homes Pty Ltd v Dowell [2005] WASCA 221 at [8]. I am mindful of the need for appropriate consideration before acting summarily.

22 The plaintiffs’ counsel claimed that he was assisted by observations in Tanning Research Laboratories Inc. v O’Brien (1990) 169 CLR 332 at 346 (Brennan and Dawson JJ). In my opinion their Honours’ observations should be understood with reference to the question of convenience of the forum as an element in the question of reasonableness raised by the Anshun principles. I was also referred to some extra-judicial writings of Handley JA.

23 In my opinion a finding that it was unreasonable not to bring a claim in some earlier litigation is not a finding to be made lightly. In this context unreasonableness is a severe test, to be distinguished from a test of inconvenience, even severe inconvenience. Consideration starts at the point that there is free access to courts and that it is not compulsory to bring forward all claims on related subjects at the same time. This is well illustrated by the outcome in Cromwell v County of Sac (1876) 94 US 351 cited in Anshun at 599.

24 If the Trade Practices Act claim proceeded it could be expected that it would involve a difficult and perhaps elaborate consideration of the availability of the limitation period of six years provided for by s 82(2) of the Trade Practices Act 1974. The plaintiffs’ case appears to require that the implied representations first caused damage when the plaintiffs entered into the Agreement for Sublease on 25 July 2000.

25 In support of their Notice of Motion senior counsel for the defendants referred to a number of circumstances. It was contended that the claims made in the Federal Court proceedings could have been brought in the proceedings commenced in the Common Law Division. The claims fall within the jurisdiction of the Supreme Court. It was also contended that the subject matter of the Federal Court proceedings was clearly part of the subject matter of the Supreme Court proceedings and that there was a reasonable expectation that those claims, if there were to be made, would have been raised in the Supreme Court.

26 In my finding, it was well known to the plaintiffs well before July 2001 that there was a need to consider whether the facts grounded a claim for some remedy relating to environmental wind issues. This subject is referred to in correspondence from November 2000 on and is one of several subjects of dispute and negotiation leading to the arrangements in the Variation Documents in July 2001, which among other things deal specifically with this subject, and afford a remedy for which a large sum of money was made available. The claims arise out of the same general subject matter as claims which were prominent in the Common Law proceedings - representations made about the state and use of the premises to be leased after completion. Evidence about representations express or implied must be interwoven; I do not find it possible to conceive of presentation of evidence of pre-contract negotiations which left out representations on some subjects and dealt only with the subjects now relied on. All the claims relating to precontract behaviour arise on the same factual matrix. There are not simple lines of division, either in the factual matrix or in the remedy.

27 Where the plaintiffs brought forward in the Supreme Court proceedings several claims relating to respects in which they said that the premises were not fit for the purpose for which they required them, it was in my judgment altogether unreasonable that they should not bring forward another respect in which they claimed that the premises were not suitable, of which they had known for some years and for which they had received a contractual remedy in the Variation Documents of 24 July 2001 which they would have to show was unsuitable in some way if they pressed on with the claims. The plaintiffs gained contractual advantages in the Deed of Release of 24 December 2002 on contractual arrangements under which they were to bring forward all their claims within a limited time. There was no signal in the arrangements made to settle the proceedings on 3 December 2005 that some other related claim might be brought forward. Quite otherwise there were extremely strong indications to these defendants that all claims were being disposed of. These indications are found not only in the terms of the Deed of Settlement, but in the complex history of earlier arrangements and negotiations particularly in the terms of the Variation Documents of 24 July 2001 and the Deed of Release of 24 December 2002. In my judgment it was to a very high degree unreasonable conduct for the plaintiffs to enter into the arrangements made on 3 December 2005 for the disposition of the Supreme Court proceedings if there was any possibility of a further claim such as is now made. Common honesty would require that that possibility be pointed out, if it existed, before obtaining a payment of $1.1 million and giving the warranty set out in that Deed. The plaintiffs’ conduct in bringing further proceedings reduces the process of negotiation such as that undertaken at the mediation in December 2005 to a process analogous to guesses about dried peas under thimbles. This is not a case where the plaintiffs have been confronted by some surprising revelation about the nature or extent of their difficulty. This is not a case where some new facts recently presented themselves; no evidence of any such circumstance has been given.

28 The parties when in an entrenched dispute of which what are called environmental wind issues were parts made an agreement, for value, which regulated how their disputes were to be resolved, fixing a time for commencement of the proceedings and the forum. For some years these arrangements appeared to be complied with, and led to an apparent resolution. In an address to the question of reasonableness, there can in my judgment be only one answer to the question whether it was reasonable not to comply with those arrangements, to wait some years and to bring forward another claim in a different court; it was emphatically and extremely an unreasonable thing to do. I regard this as clear beyond argument. I will dispose of the proceedings summarily.

29 A further ground upon which the plaintiffs relied was a claim for the exercise of the Court's discretion to prevent abuse of process established by observations in Walton v Gardiner (1993) 177 CLR 378 at 392-393 (Mason CJ, Deane and Dawson JJ) where their Honours said:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail (see, e.g., Metropolitan Bank v. Pooley (1885), 10 App. Cas. 210, at pp. 220-221; General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964), 112 C.L.R. 125, at pp. 128-130.). Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them (see, generally, Voth v. Manildra Flour Mills Pty. Ltd. (1990), 171 C.L.R. 538). Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings (see, e.g., Reichel v. Magrath (1889), 14 App. Cas. 665, at p. 668; Connelly v. Director of Public Prosecutions , [1964] A.C. 1254, at pp. 1361-1362). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police ([1982] A.C. 529, at p.536) as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".

30 Although it is not necessary to act on this basis in view of my earlier reasons I will say that in my opinion the commencement and maintenance of the Federal Court proceedings is an abuse of process having regard to the earlier course of events to which I have referred, particularly the arrangements in the Deed of 24 December 2002 under which the Supreme Court proceedings were commenced and limitations were imposed on those proceedings, and the circumstances in which the claims in the Supreme Court proceedings were resolved according to the Deed of Settlement of 3 December 2005. In these circumstances the commencement and also the continued maintenance of the Federal Court proceedings are vexatious; the defendants had already fought their way through the plaintiffs’ complaints to the finality of the Deed of Settlement. They are also oppressive, to a very marked degree, as at the time of commencement of the Federal Court proceedings the defendants were still engaged in what remained of the issues in the Supreme Court proceedings, themselves issues of considerable complexity which I have disposed of in another judgment I have published today. To my mind it is altogether clear that if they should not be dismissed of on other grounds the Federal Court proceedings should be permanently stayed as an abuse of process. There is no possibility of inconsistent judicial dispositions, a frequent subject of consideration in abuse of process cases.

31 My orders are:

(1) Order pursuant to UCPR 13.4
that the proceedings be dismissed.

(2) The plaintiffs are to pay the defendants’ costs of the Notice of Motion of 18 August 2006 and of the proceedings generally.

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