Retrep P/L v Baillieu Knight Frank (SA) P/L

[1993] FCA 656

NOT SUITABLE FOR DISTRIBUTION

O	A	)
1

SOUTH AUSTRALIA DISTRICT REGISTRY ) SG 42 of 1992

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GENERAL DIVISION 1

BETWEEN :  RETREP PTY LTD and ALAMEDA PTY LTD

Applicants

AND :  BAILLIEU KNIGHT FRANK (SA) PTY LTD

Respondent

CORAM: Burchett J.

PLACE: Adelaide	RECEIVED . .
DATE : 1 September	1993

2 1 SEP 1993 !

TEMPORE REASONS FOR JUDGMENT AUSTRALIA PRINCIPAL REGISTRY

BURCHETT S . :

In this matter I am asked to order a separation of the issues of liability and damages. The difficulty is that it is one of those cases which do occur - there is no point in trying to estimate their proportion of the total number of cases, but they certainly do occur in significant numbers - where these two issues each have tentacles that reach into the other.

Here, it is true, as urged by the applicant in the motion, that, if certain facts are established, it may be possible for the assessment of damages to take place upon a relatively simple basis. But it seems to me it is much more	damages will be complex, and that there will be many questions	likely that both the issues on liability and the issues on
of a character which is not clear-cut, but rather depends upon estimate and opinion, which will be common both to liability and to damages.
Claims are made that the respondent failed to take due care. These claims are not based on the tort of negligence, but upon a contractual duty to take care. That, however, does not detract from the fact that the alleged duty to take care, and the nature of the precautions which might reasonably be expected, will both be dependent upon views as to the probable consequences of particular courses of action; and the very same considerations will be relevant to any estimation of the damages which the applicant will attempt to show flowed from the adoption of the courses of action that were in fact adopted. This way of putting it is but one aspect of a total situation in which, it seems to me, it will not be possible to make a satisfactory separation of the issues of damages and liability. I think that, in fact, much of the evidence which the applicant seeks to avoid calling at the first hearing
hearing - be found to be called either by the applicant, or, proposed by it would in fact - if there were such a separate
at any rate, by the respondent in seeking to show that there were not the alleged disadvantages in the pursuit of the course of action that it pursued.
In those circumstances, I think a correct exercise of my discretion is to refuse to split the trial, and I so order. I order that the applicant in the motion pay the costs of and incidental to the motion.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

Associate:

Date: 16 September 1993

Counsel for the Applicants:	M r P Heywood-Smith
Solicitors for the Applicants:	Messrs Clelands
Counsel for the Respondent:	Mr S Walsh with Mr Y M Griffin
Solicitors for the Respondent:	Messrs Phillips Fox
Date of hearing:	1 September 1993