Schindler Lifts Australia Pty Ltd v Harbour Street Development Pty Ltd
[2015] NSWDC 430
•21 August 2015
District Court
New South Wales
Medium Neutral Citation: Schindler Lifts Australia Pty Ltd v Harbour Street Development Pty Ltd [2015] NSWDC 430 Hearing dates: 21 August 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) By consent, orders in the form of the document entitled “‘A’ ORDER” initialled, amended and dated today by me, a form of which was annexed to the plaintiff’s notice of motion.
(2) By consent, on or before 28 August 2015 the defendant is to produce to the Court all documents in its possession relating to the following:
(a) Whereabouts of the net proceeds of sale of the property known as 60-62 Harbour Street, Wollongong in the State of NSW (“the property”) including, but not limited to:
(i) The settlement sheet for the sale of the property;
(ii) Copies of all bank statements recording the finalisation and settlement of the property in 2014 and/or 2015;
(iii) Copies of all statements for bank accounts, loan accounts and/or credit cards which record the payment, transfer, deposit or receipt of any part of the net proceeds of sale of the property subsequent to their deposit into the bank account(s) referred to in subparagraph (ii) above.
(b) List of all and any assets owned by the defendant.
(3) By consent, the costs of the plaintiff’s notice of motion filed 4 August 2015 be costs in the proceedings.
(4) The defendant be granted leave to file and serve a statement of cross-claim in form of the statement of cross-claim annexed to the defendant’s motion dated 17 August 2015 by 4 September 2015 on condition:
(a) that the defendant serve upon the plaintiff with a filed copy of the statement of cross-claim all evidence of its former General Manager, Mr Adrian Teh, going to the damages alleged in paragraph 8 of that cross-claim; and
(b) that the defendant pay any costs thrown away by reason of the late service of the cross-claim.
(5) Direct that any further evidence of the cross-claimant be served by 11 September 2015.
(6) Order that any defence of the plaintiff be filed and served by 18 September 2015.
(7) The costs of the defendant’s notice of motion be costs in the proceedings.
(8) Stand over the proceedings for further directions to today at 12.15pm before the list judge.Catchwords: CIVIL PROCEDURE - cross-claims — against plaintiff – application for leave Category: Procedural and other rulings Parties: Schindler Lifts Australia Pty Ltd (plaintiff)
Harbour Street Development Pty Ltd (defendant)Representation: Counsel:
Solicitors:
Mr A J Stanton (defendant)
Dejure Commercial Lawyers Pty Ltd (plaintiff)
Tucker & Cowen Solicitors (defendant)
File Number(s): 2014/29647 Publication restriction: None
Judgment
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There are two notices of motion before me. The first by the plaintiff, Schindler Lifts Australia Pty Ltd (“Schindler”), seeks a freezing order against the defendant, an order that the defendant produce certain documents and an order in respect of costs. These orders, as amended, have been consented to by the defendant. Accordingly, by consent, I will make orders dealing with the plaintiff's notice of motion as amended.
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The defendant, Harbour Street Development Pty Ltd (“Harbour Street”), seeks leave to file a cross‑claim. Harbour Street claims damages resulting from the failure by Schindler "to meet the fundamental terms of the Agreement" and particularises expenses including specific amounts for accommodation refunds, food and beverage refunds, general discounts to guests and additional labour to assist with complaints, housekeeping, food delivery and luggage, expenses that were said to be incurred "as a result of the poor and inconsistent operation of the lifts".
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The agreement between the parties is in writing and its terms are not disputed. It is sufficient to note that Schindler for reward was engaged by Harbour Street to maintain the lifts in Harbour Street’s premises.
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The underlying facts founding the cross‑claim are of a similar nature to those relied on in the defence of the claim. If there is substance in the cross‑claim, it would be appropriate for leave to be granted so that it is dealt with as part of the proceedings rather than in separate proceedings, a course that does not appear to appeal to Schindler and would not be an appropriate way to manage the dispute.
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There are two matters raised by Schindler in opposition to the filing of the cross‑claim.
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First, that the cross-claim has no real prospects of success; and secondly, that there is no explanation to excuse the delay in the making of the cross‑claim.
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As to the prospects of success, cl 8(d) of the agreement purports to exclude liability for "indirect, consequential or special loss or damage of any sort howsoever caused" although Schindler would be responsible, in sub-cl (c), for "loss or damage which is the direct and foreseeable result of a negligent act or omission by Schindler or its personnel." There is some force in the submission that the nature of the claim might be categorised as indirect or consequential loss rather than direct damages. The cross‑claim does not adopt or refer to the requirement of negligence in terms, but does refer to the obligation to "keep the frequency and duration of breakdowns to a minimum" found in cl 3(a) of the agreement.
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I do not think on an interlocutory application that I should determine the proper construction of cls 3 and 8 in the context of the entire agreement. The merits of that claim should be dealt with at a trial. It is accepted by Schindler that a high level of certainty about the futility of the cross‑claim must be established in order for the Court to refuse leave to file the cross‑claim, and, in my view, that is not present here.
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The other reason advanced is that the cross‑claim has been served late and no explanation for the delay has been given.
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The Uniform Civil Procedure Rules 2005 require that the timing of a cross‑claim is subject to the same limitations as the filing of a defence (r 9.1(1)). Harbour Street submitted that filing a cross‑claim would have complicated settlement discussions. However, an early disclosure of a party's case is likely to assist parties to better understand the risks of litigating, the prospects of success and possible outcomes. In this case, the delays are substantial: the defence was filed on 11 September 2014, almost a year ago. The proceedings have not yet been set down for hearing, although the notification of a hearing date may be imminent. It seems feasible to impose conditions on the grant of leave so as to ensure that the future hearing of Schindler’s claim is not delayed. Schindler submitted that Harbour Street should pay any costs thrown away by the late service of the cross‑claim and that there be a short period of time for the service of evidence to support the cross‑claim. Neither matter was contested. A costs order of the type sought by Schindler as a condition of filing the cross-claim is appropriate.
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As to the costs of the application for the filing of the cross‑claim, Harbour Street has been successful in obtaining leave, a matter in its favour in respect of costs. On the other hand, a grant of leave by the Court is only required because of the failure of Harbour Street to comply with the usual procedure of filing a cross‑claim at the time of filing the defence. In the circumstances, I am persuaded to order that the costs of the notices of motion be costs in the proceedings.
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Accordingly, the orders are:
By consent, orders in the form of the document entitled “‘A’ ORDER” initialled, amended and dated today by me, a form of which was annexed to the plaintiff’s notice of motion.
By consent, on or before 28 August 2015 the defendant is to produce to the Court all documents in its possession relating to the following:
Whereabouts of the net proceeds of sale of the property known as 60-62 Harbour Street, Wollongong in the State of NSW (“the property”) including, but not limited to:
The settlement sheet for the sale of the property;
Copies of all bank statements recording the finalisation and settlement of the property in 2014 and/or 2015;
Copies of all statements for bank accounts, loan accounts and/or credit cards which record the payment, transfer, deposit or receipt of any part of the net proceeds of sale of the property subsequent to their deposit into the bank account(s) referred to in subparagraph (ii) above.
List of all and any assets owned by the defendant.
By consent, the costs of the plaintiff’s notice of motion filed 4 August 2015 be costs in the proceedings.
The defendant be granted leave to file and serve a statement of cross-claim in form of the statement of cross-claim annexed to the defendant’s motion dated 17 August 2015 by 4 September 2015 on condition:
that the defendant serve upon the plaintiff with a filed copy of the statement of cross-claim all evidence of its former General Manager, Mr Adrian Teh, going to the damages alleged in paragraph 8 of that cross-claim; and
that the defendant pay any costs thrown away by reason of the late service of the cross-claim.
Direct that any further evidence of the cross-claimant be served by 11 September 2015.
Order that any defence of the plaintiff be filed and served by 18 September 2015.
The costs of the defendant’s notice of motion be costs in the proceedings.
Stand over the proceedings for further directions to today at 12.15pm before the list judge.
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Decision last updated: 03 July 2018
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