Re: Mercantile Mutual Custodians P/L v Village/Nine Network Rest
[1999] QSC 125
•11 June 1999
IN THE SUPREME COURT
OF QUEENSLANDBrisbane No.1823 of 1996
Before the Hon. Mr Justice Mackenzie
[re: Mercantile Mutual Custodians P/L v Village/Nine Network Rest & Ors]
BETWEEN:
MERCANTILE MUTUAL CUSTODIANS PTY LTD
(ACN 008 508 496)
Plaintiff
AND:
VILLAGE/NINE NETWORK RESTAURANTS &BARS PTY LTD
(ACN 061 400 799)
First Defendant
AND:
VILLAGE ROADSHOW LIMITED
(ACN 010 672 054)
Second DefendantAND:
PUBLISHING AND BROADCASTING LIMITED
(FORMERLY NINE NETWORK AUSTRALIA LIMITED)
ACN 009 071 167)
Third DefendantJUDGMENT - MACKENZIE J.
Judgment delivered 11 June 1999
CATCHWORDS: PRACTICE - leave to amend an amended defence - plaintiff's alleged failure to mitigate the loss and damage alleged to have been suffered - statement of claim - further and better particulars.
Counsel:Mr Wilson QC for the applicant
Mr D Jackson QC for the respondent
Solicitors:Lees Marshall Warnick as town agents for Herbert Geer & Rundle
RWT Mann & Partners for the respondent
Hearing Date: 9 April 1999
IN THE SUPREME COURT
OF QUEENSLANDBrisbane No.1823 of 1996
Before the Hon. Mr Justice Mackenzie
[re: Mercantile Mutual Custodians P/L v Village/Nine Network Rest & Ors]
BETWEEN:
MERCANTILE MUTUAL CUSTODIANS PTY LTD
(ACN 008 508 496)
Plaintiff
AND:
VILLAGE/NINE NETWORK RESTAURANTS &BARS PTY LTD
(ACN 061 400 799)
First Defendant
AND:
VILLAGE ROADSHOW LIMITED
(ACN 010 672 054)
Second DefendantAND:
PUBLISHING AND BROADCASTING LIMITED
(FORMERLY NINE NETWORK AUSTRALIA LIMITED)
ACN 009 071 167)
Third DefendantJUDGMENT - MACKENZIE J.
Judgment delivered 11 June 1999
This is a summons for leave to further amend an amended defence. The chronology handed up with the submissions shows that the action has had a lengthy and litigious history. Most recently Ambrose J gave leave to amend the defence. During the period when his decision was reserved there was an unsuccessful mediation.
On 22 February 1999 the present summons for leave to amend the defence yet again was filed. According to the affidavit of Mr Stops, solicitor for the defendants, counsel retained by the defendants since September 1996 had become unavailable prior to the mediation because he was appearing in the Royal Commission into the Victorian gas plant disaster. New senior counsel engaged for the mediation reviewed the pleadings and other documents and formed the view, at about the time when Ambrose J delivered his judgment, that the pleadings, even if amended in the way ultimately permitted by Ambrose J, did not accurately record the issues as between the parties.
On 23 December 1998 the plaintiff's solicitors were advised that the defendants would not be relying on the leave granted by Ambrose J and would be preparing a further defence. On 2 February 1998 an amended defence drawn by new senior counsel was sent to them. On 19 February 1999 the plaintiff's solicitors commented upon the draft and the defendants' solicitors responded on 15 March 1999, sending a redraft of the proposed further amended defence, taking into account the plaintiff's solicitors comments. Further response was invited.
On 18 March 1999 the plaintiff's solicitors sent two letters. The first replied in respect of specific paragraphs of the letter of 15 March 1999 and referred to the absence of evidence concerning the reason for the delay in getting the pleadings in order. The second refined one of the points made in the first letter and added further comments about one paragraph.
On 1 April 1999 the defendants' solicitors responded. The paragraphs of the letter of 18 March 1999 which were the subject of comment were 14, 15, 16, 21, 22, 23, and 25. At the hearing before me, par 14, 21 and 25 were said by senior counsel for the defendants to be no longer resisted. He also said he would submit to an order for particulars with respect to the matters in par 15 and 16 of the letter.
The matters not conceded are concerned with the proposed par 9S of the further amended defence. In its latest form it is as follows:
"9S. If the Plaintiff suffered the loss and damage as alleged in paragraph 9 (which is specifically denied) the Plaintiff has failed to take any or any reasonable steps to mitigate the loss and damage alleged to have been suffered by reason whereof the Plaintiff is not entitled to recover such alleged loss and damage.
PARTICULARS
(a)The Plaintiff has taken no steps to vary the construction of the QAB to bring it back to a status where possession of the QAB would be attractive to potential tenants. The Plaintiff could have put windows in the second floor of the premises.
(b)These particulars are incomplete and further particulars will be provided after the Plaintiff has provided full particulars of its loss and damage.
The allegation of loss and damage in the statement of claim is supplemented by particulars delivered on 17 July 1996. In summary, items included are loss of rental by reason of the first defendant not proceeding with the tenancy and substitute tenants having to be found; contributions to fit-out; costs of modifying the building for substitute tenants; incentives and other expenses paid to tenants because of the loss of the first defendant as major tenant and to obtain substitute tenants; and extra fees incurred in redoing so. The particulars are provisional as a number of amounts had not at that time been quantified.
Paragraph 9S is concerned with the alleged failure to mitigate. I take the words in italics in par (a) to be an attempt to particularise one means by which the plaintiff may have mitigated loss. I take (b) to mean that the defendants claim that until they know with more particularity what the plaintiff did, thereby incurring loss, it cannot be better particularised what the plaintiff should have done to mitigate the loss. It may be true in many cases, as the respondents submitted, that the statement of loss and damage would not of itself shed much light on issues of mitigation. However, if the information sought is more concerned with what was done rather than the quantum (although quantum may not be irrelevant) such information may well assist in pleading and particularising measures which might properly be regarded as necessary mitigation.
I note that the matter has been on the supervised case list since 14 March 1997 and that notwithstanding that, the case has not progressed with any noticeable speed towards finality. The multiplicity of interlocutory applications is a contributing factor. It is important in my view that steps be taken to move the matter along. The second of the orders I propose to make should not be regarded as indicating default on the part of the plaintiff. Rather it should be regarded as a mechanism for ensuring that the matter moves forward with reasonable speed.
To that end I will allow the defence to be further amended but require prompt attention by the defendants to particularising the plea of mitigation. The defendant is entitled to know sufficiently in pleading terms - more precisely than the present further and better particulars provide - of the basis upon which it is claimed that the plaintiff incurred loss and damage. The second order provides a trigger for prompt particularisation by the defendants of the respects in which it is alleged that the plaintiff should have mitigated the loss. The orders I make are the following:
1.I give leave to amend the defendants' defence in accordance with Exhibit AWS5 to the affidavit of Andrew William Tilley Stops sworn on 17 March 1999, subject to the following: incorporation of particulars requested in par 14, 15 and 16 of letter M in Exhibit RWTM1 to the affidavit of Ralph William Thomas Mann sworn on 22 March 1999, and as further identified in par 14, 15 and 16 of letter S and par 14 of letter T of the same Exhibit; redrafting par 18A of the proposed further amended defence to clarify its intent and/or particularisation as discussed in par 25 of the same letters.
2.I order the plaintiff to deliver to the defendants within 28 days of this order or such other period as a judge may allow, further and better particulars of how the plaintiff claims to have suffered loss and damage.
3.I order the defendants to give to the plaintiff, within 28 days of delivery to the defendants of the further and better particulars referred to in par 2 above, or such other period as a judge may allow further and better particulars of steps in mitigation which it is alleged the plaintiff should have undertaken.
4.Liberty to apply.
5.I order that the costs of the application be plaintiff's costs in the cause to be taxed.
0
0
0