Tribond Pty Ltd v Atinon Pty Ltd & 1 or

[2007] NSWSC 1149

CITATION:	Tribond Pty Ltd v Atinon Pty Ltd & 1 or [2007] NSWSC 1149
HEARING DATE(S):	5 September 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	5 September 2007
DECISION:	Directions made for expedited hearing
CATCHWORDS:	PROCEDURE - Expedition
LEGISLATION CITED:	(CTH) Trade Practices Act 1974 (NSW) Retail Leases Act 1994
PARTIES:	Tribond Pty Limited (plaintiff) Atinon Pty Limited (first defendant) Craig Leigh Moran (second defendant)
FILE NUMBER(S):	SC 3470/07
COUNSEL:	G A Sirtes (plaintiff) E Cox (first defendant) T Somerville (sol) (second defendant)
SOLICITORS:	Home Wilkinson Lowry (plaintiff) Burridge Harris & Flynn (first defendant) Somerville & Co (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Wednesday 5 September 2007

3470/07 Tribond Pty Ltd v Atinon Pty Ltd & Anor

JUDGMENT (ex tempore)

1 HIS HONOUR: In these proceedings the plaintiff Tribond Pty Limited seeks a declaration that the second defendant Craig Leigh Moran has not exercised an option to purchase property situate at and known as 68 River Street, Maclean. The plaintiff is entitled, up to 30 September 2007, to exercise an option to purchase that property. It seeks consequential relief restraining the first defendant Atinon Pty Ltd, the proprietor of the property, from selling the property other than pursuant to the plaintiff's option.

2 The urgency justifying a grant of expedition is said to arise from the circumstance that the plaintiff's option, which has previously been extended, will expire on 30 September 2007, unless the plaintiff and the first defendant agree to extend its term. While it may be that those parties could reach such an agreement, the plaintiff is not entitled to insist that the first defendant grant any such extension. The plaintiff says it is reluctant to exercise the option before 30 September while the current dispute is on foot, since the option fee payable on exercise may not be recoverable, given encumbrances that affect the property.

3 As Windeyer J, on 13 July, ordered that the proceedings be expedited, I see no reason to depart from the view that they are entitled to an early hearing on the basis of the imminent expiry of the option. His Honour must have considered that it was the imminent expiry of the option that gave them urgency, and there is no reason for me to depart from that view. To allocate a hearing date which did not permit the question to be decided before 30 September 2007 would be to defeat the reason his Honour granted expedition on 13 July.

4 On 13 July, his Honour ordered also that the defendants file and serve their defences and any cross-claims by 31 July. That was in a context where the plaintiff had informed the Court on 13 July that their evidence was complete, having been filed on 4 July with some supplementary material being filed on 13 July. The second defendant did not comply with that direction, and it was necessary for Windeyer J, when the matter returned before his Honour on 3 August, to extend time for the defences and cross-claims to 10 August.

5 The matter came before me in the Expedition List on 31 August. The second defendant's Defence and Cross-Claim had been filed on 30 August, 20 days late having regard to Windeyer J's direction of 3 August. The Cross-Claim raised a number of new issues, including a contention that the lease under which the second defendant had occupied the property was a retail shop lease within the meaning of the (NSW) Retail Leases Act 1994; an allegation that the first defendant was estopped by conduct from denying that the second defendant had exercised its option; alternatively, an allegation that a new contract had been made between the first defendant and the second defendant; and, finally, an allegation that the plaintiff and first defendant have been guilty of misleading and deceptive conduct. The representations relied on to found the estoppel and the s 52 claim are not particularised with clarity, but the particulars of the estoppel refer to correspondence between solicitors, as do the particular of the alleged agreement; presumably, the representations that found the estoppel would also be those relied on for the s 52 claim.

6 On 31 August, I made directions for the filing and service of defences to the Cross-Claim by 5 September, a direction for discovery by the first defendant of certain documents (discovery of which was requested by the second defendant), provisionally fixed the matter for hearing before the Chief Judge on 20 September, and stood the matter over to today to permit further consideration of issues which were foreshadowed as to the preparation of the matter for hearing.

7 The plaintiff now proposes that the hearing date on 20 September be confirmed, that directions be made for some further particulars to be provided by the second defendant of new issues which its defence and cross-claim raise; that the second defendant file and serve its affidavit evidence by 12 September; and that any evidence in reply be filed and served by 17 September. The first defendant, although initially seeking a longer time to consider the second defendant's evidence, now does not oppose those directions. The second defendant opposes the hearing being confirmed for 20 September and submits that it cannot be ready in time to meet that date.

8 As I have said, the particulars of the estoppel and the new agreement, and presumably the (CTH) Trade Practices Act 1974 claim, so far as they go, suggest that the evidence relied on is to be found in correspondence between the solicitors. I cannot see that it will be particularly difficult to prepare that evidence within a week. As I understand the position, the second defendant’s main contention is that it will have difficulty in assembling evidence on the retail shop lease issue by that time. For the second defendant, Mr Somerville contends that to prove that the premises were a retail shop it will be necessary for him to travel to Maclean (which is probably a 45 minute flight), to visit the premises, to obtain photographs of the premises, to interview witnesses and also to interview a solicitor who formerly acted for the second defendant. It would then be necessary to prepare affidavits of those witnesses, have them verified, and served.

9 I would have thought that using the offices of a local solicitor – or even a motel room and a laptop computer – it would be possible to attend to all of those matters within the scope of a one day visit to Maclean; certainly, it should be possible to do it in two days. In any event, I cannot see that proof that the premises were a retail shop would be a particularly difficult issue requiring an extensive amount of evidence.

10 Having regard to the defaults to date in compliance with directions for the filing of the defences, the circumstance that the plaintiff advised on 13 July that its evidence was complete, and the circumstance that expedition was granted on 13 July and that the second defendant has had ample opportunity to set about preparing evidence in the interim, it is my view that directions substantially in accordance with those proposed by the plaintiff should be made.

11 I make orders in accordance with paragraphs 1 and 2 of the document entitled Short Minutes of Order initialled by me, dated this day and placed with the papers.

12 I make orders in accordance with the document entitled Directions initialled by me, dated this day and placed with the papers.

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