Stockland (Constructors) Pty Limited v Darryl I Coombs

[2004] NSWSC 928

CITATION:	Stockland (Constructors) Pty Limited & Anor v Darryl I Coombs & Ors [2004] NSWSC 928
HEARING DATE(S):	6/10/04
JUDGMENT DATE:	6 October 2004
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
DECISION:	Remitter Order made. Directions given.
CATCHWORDS:	Part 72 references - Costs
PARTIES :	Stockland (Constructors) Pty Limited (First Plaintiff) Stockland (Properties) Pty Limited (Second Plaintiff) Darryl I Coombs Pty Limited (First Defendant) Philip J Flook Pty Limited (Second Defendant) Retail Design Group (International) Pty Limited (Third Defendant)
FILE NUMBER(S):	SC 55046/99
COUNSEL:	Mr PL Dodson (Plaintiffs) Mr LC Tan (Solicitor) (First and Second Defendant) Mr RD Newell (Third Defendant)
SOLICITORS:	Cohen & Krass (Plaintiffs) Minter Ellison (First and Second Defendants) James Legal Pty Limited (Third Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Einstein J

Wednesday 6 October 2004 ex tempore
Revised 7 October 2004

55046/99 STOCKLAND (CONSTRUCTORS) PTY LIMITED & ANOR v DARRYL I COOMBS PTY LIMITED & Ors

JUDGMENT – directions/orders

Application of first and second defendants

1 These proceedings have been listed on the application of the first and second defendants who have sought for the court today to enter judgment for them against the plaintiffs. As I understand the position Mr Dodson of counsel, who appears for the plaintiffs, accepts that consistently with the referee's decision and the reasons on the separate questions given in the judgment of 28 September 2004, it is appropriate for a judgment to be entered for the first and second defendants against the plaintiffs. His clients are content to simply abide the Court's decision as to when that judgment should be entered into.

2 Mr Tan has appeared for the first and second defendants. He accepts, as I understand it, that the question of costs as between his clients and the plaintiffs, is not capable of resolution today, for the simple reason that the third defendant [being a defendant to the second cross-claim brought by the first and second defendants] may seek costs from the first and second defendants. In that event the first and second defendants may seek by a Sanderson or Bullock order route to have an order made that the plaintiffs pay the costs of the first and second defendants of the proceedings, including so much of the costs of the second cross-claim, if any, as may be ordered to be paid by the first and second defendants to the third defendant.

3 For those reasons it seems to me to be quite untidy to presently do otherwise than have the transcript note that following the remission of the proceedings to the referee for clarification/reconsideration of the ambit of fees issue - see the decision of 28 September 2004 - and following the then finalisation of the matter upon an application to adopt the referee's decision/reasons following the remitter, it will be appropriate for all issues to be finalised. Apparently one set of issues are then likely to involve the first and second defendants, namely issues of costs.

4 There does not seem to me to be particular utility in the court today ordering judgment for the defendants against the plaintiffs. It may be noted that the first and second defendants will be excused from attendance at so much of the second tranche application for adoption of the referee's reasons as will involve only the third defendant and the plaintiffs. The plaintiffs and the third defendant, are directed to keep the first and second defendants notified of events so that the first and second defendants can be heard on the costs issues. It simply seems to me to be untidy to now make only one order and to leave a number of other matters outstanding and for all the valiant attempts by Mr Tan to persuade the court today to enter judgment for the first and second defendants against the plaintiffs [and to have what I would regard as a very novel and unusual order, which I have never made, that the plaintiffs pay the first and second defendants' costs on a party party basis but the first and second defendants have liberty to apply for an alternative costs order on three days notice], to my mind that form of order is only going to lead to confusion. The matter is therefore simply stood over for the purposes of the remitter and the first and second defendants may seek their verdict at the appropriate time after the referee's further reasons have come forward and been argued.

Application of the third defendant

5 Counsel for the third defendant has sought a number of orders said to streamline the remitter and providing for matters such as the dates for submissions to be made to the referee by the parties, the date for the referee to submit his final report to the court and similar.

6 Mr Dodson, who appears for the first and second plaintiffs, has submitted that the answer to separate question 3 provided for in paragraph 33 of the judgment lacks sufficient precision or clarity to become the subject of an order.

7 In my view that submission is specious. Mr Dodson has sought to make submissions in relation to the matter. My own view is that the separate question having been carefully defined during the course of the hearing and full submissions having been taken from the parties, it is entirely inappropriate to regard the matter as still live in any sense.

8 Mr Dodson, as I understand him, has submitted that it is necessary for a formal order of remitter to be made, notwithstanding that the court in the judgment answered separate question 3 by holding that the referee's report should be referred back to the referee for clarification /reconsideration of the ambit of fees properly allowable to the joint venture in light his findings or varied findings following the remitter.

9 My own view is that if any formal order requires to be made which I doubt, it should be an order precisely in terms of the essence of paragraph 33 of the judgment and I propose to so order.

10 The Court orders as follows:

(1) Consistently with the answer to separate question 3 given in the judgment of 28 September 2004, order that the referee's report be referred back to the referee for clarification/reconsideration of the ambit of fees properly allowable to the joint venture in light of his findings or varied findings following the remitter.


(2) Orders are made in terms of paragraphs 1 to 7 inclusive of the short minutes of order which I initial and date 6 October 2004.

(3) Order that the matter be listed before the list judge for directions on 4 February 2005, for the purpose of the parties obtaining a hearing date in terms of the adoption or rejection of the referee's reasons following the remitter.

(4) Otherwise, costs of today are reserved.

(5) The parties have liberty to apply to the court on four days notice to one another on any issue which may require consideration prior to the commencement of the long vacation.

11 I note that the third defendant, having not obtained the formal consent of the referee to an order that he submit his final report to the court by 6 December 2004, has undertaken as soon as practicable to ascertain from the referee if that date is acceptable to him, and if it is not acceptable to him, has undertaken to relist the matter for the purpose of reconsideration of what the date for submission of the final report should be. Within reason the court would obviously bow to the referee's convenience in that regard, it being however the case that a relatively confined matter has apparently been the subject of the remitter and the parties are of course keen, as certainly the court is, to have as soon as practicable the final report from the referee.

I certify that paragraphs 1 - 11
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 6 October 2004 ex tempore
and revised 7 October 2004

___________________
Susan Piggott
Associate

7 October 2004

Last Modified: 10/20/2004