Williams v Coral Bay Amalgamated Holdings Pty Ltd
[2013] WASC 269
•31 JULY 2013
WILLIAMS -v- CORAL BAY AMALGAMATED HOLDINGS PTY LTD [2013] WASC 269
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 269 | |
| 31/07/2013 | |||
| Case No: | CIV:2611/2010 | 13 JUNE 2013 | |
| Coram: | KENNETH MARTIN J | 13/06/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN BENEDICT WILLIAMS CORAL BAY AMALGAMATED HOLDINGS PTY LTD |
Catchwords: | Practice and procedure Tomlin orders Application for orders to enforce Tomlin order Whether appropriate to grant application on a summary basis Reasonableness Evidentiary hearing required Turns on own facts |
Legislation: | Nil |
Case References: | Dashwood v Dashwood [1927] WN 276 E F Phillips & Sons v Clarke [1970] Ch D 322 General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6 Green v Rozen [1955] 1 WLR 741 Roberts v Gippsland Agricultural & Earth Moving Contracting Co [1956] VLR 555 Thomas v Cummins [2009] WASC 228 Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CORAL BAY AMALGAMATED HOLDINGS PTY LTD
Defendant
Catchwords:
Practice and procedure - Tomlin orders - Application for orders to enforce Tomlin order - Whether appropriate to grant application on a summary basis - Reasonableness - Evidentiary hearing required - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr R A S Rowick
Defendant : Mr S M Davies SC
Solicitors:
Plaintiff : Richard Rowick Barrister & Solicitor
Defendant : Cullen Babington Hughes
Case(s) referred to in judgment(s):
Dashwood v Dashwood [1927] WN 276
E F Phillips & Sons v Clarke [1970] Ch D 322
General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6
Green v Rozen [1955] 1 WLR 741
Roberts v Gippsland Agricultural & Earth Moving Contracting Co [1956] VLR 555
Thomas v Cummins [2009] WASC 228
Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307
- KENNETH MARTIN J:
(This matter was heard on 13 June 2013 in my CMC list and a judgment delivered ex tempore. At the time, I reserved the right to edit and publish the reasons, as I do now.)
1 The issue before me arose from what has effectively emerged as an application for specific performance of an agreement reached in settlement of these proceedings. The essential question is whether it is appropriate for that application to be dealt with in these proceedings, or alternatively by a fresh action seeking enforcement of the agreement. Written submissions and oral arguments were received in relation to that question.
2 The agreement settling the proceedings is fashioned as what are referred to as 'Tomlin orders' (after Lord Tomlin's clarification of the status of such orders in Dashwood v Dashwood [1927] WN 276 and the first practice note about such orders in the English courts). The Tomlin format presents in the following order made on 9 March 2011 by Registrar Whitby:
All further proceedings in the action be stayed upon the terms of settlement agreed between the parties and set out in the memorandum of consent orders dated 9 march 2011, except for the purpose of carrying the terms of settlement into effect and there be liberty to apply for that purpose.
3 Appended to those orders, somewhat curiously (because the orders are plainly not made under Rules of the Supreme Court 1971 (WA) O 43 r 16) is a document entitled 'Consent Orders for Disposal of Proceedings before Registrar Whitby on 9 March 2011', comprising 12 paragraphs of orders expressed to be pursuant to O 43, r 6 of the Rules of the Supreme Court. Attached to that document are:
(i) Annexure A, which is a sublease of 20 February 1997 between the plaintiff and the defendant; and
(ii) Annexure B, a one-page map or plan showing a Robinson Road to the south and an area bordered in red, referred to colloquially before me as 'Precinct 1'. Towards the north of that diagram, on the western side and marked with an asterisk, is a proposed Lot 20.
4 The form of the orders made by Registrar Whitby on 9 March 2011, in settlement of CIV 2611 of 2010 looks to follow the Tomlin methodology of effectively staying proceedings, save for a purpose of granting liberty for the enforcement of a settlement agreement which is annexed. Although incongruously expressed as 'consent orders' of the court (when they are not), the 12 paragraphs and their two annexures are an agreement properly construed. I will accordingly refer to them together as the 'Agreement'.
5 The court file informs that, subsequent to March 2011, the parties have fallen into an implementation dispute over the obtaining of development approvals and the subdivision of Lot 46. Pursuant to par 1 of the Agreement, an ultimate result of subdivision would be the issue of a separate certificate of title for Lot 20 - demarcated in accordance with Annexure B to the Agreement.
6 The implementation dispute went to mediation, but remains unresolved. Before me there were two affidavits by Dr Williams, first of 7 March 2013, and more recently of 10 May 2013. They have been responded to on behalf of the defendant by Alistair John Brogan by his affidavit sworn 12 June 2013.
7 The question then is whether it is appropriate to determine within these proceedings what is effectively an application for specific performance of the Agreement. In Thomas v Cummins [2009] WASC 228, Beech J dealt with an application to enforce a Tomlin order, explaining the legal principles between [24] – [29] by reference to a number of case authorities. This was in the context of what was effectively a motion for summary orders to be made by way of implementation of the settlement agreement in that case.
8 An application for summary enforcement relief reflects the nature of a Tomlin procedure, pursuant to which parties put their agreement before the court and stay their action rather than dismiss or discontinue it, in an expectation that if the agreement is not implemented, they may apply for an enforcement order in that same action.
9 The intent of a Tomlin order is that parties are effectively protected by a hopefully cheap, quick and efficacious way of enforcing what they have agreed - if things go wrong. The question of whether they can proceed by a summary method is dealt with by Beech J in Thomas v Cummins at [26] - [28]. His Honour identifies factors the court weighs in assessing the question, including: (a) the extent to which matters extraneous to the original action are involved; (b) how substantial the questions to be determined are; (c) to what extent questions of credibility are likely to arise; and (d) whether pleadings and discovery may be desirable.
10 One of the cases his Honour discusses is General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6. There, McPherson J in the Supreme Court of Queensland considered a number of compromise authorities at (9 – 11), referring to Green v Rozen [1955] 1 WLR 741 and E F Phillips & Sons v Clarke [1970] Ch D 322 and the important Victorian decision of Roberts v Gippsland Agricultural & Earth Moving Contracting Co [1956] VLR 555. In relation to Roberts v Gippsland, McPherson J observed (10):
Smith J, after a thorough analysis of the authorities, concluded that, even though it may involve matters extraneous to the action, an agreement compromising the action may be summarily enforced by application in the action provided that the court is "clearly satisfied" that justice can be done under the summary procedure: see [1956] VLR 555, 564. Whether justice can be done requires consideration of a variety of matters involving, as his Honour observes, "questions of degree", and including the extent to which extraneous matters are involved, how substantial are the questions to be determined, to what extent questions of credibility are likely to arise, and whether pleadings and discovery may be desirable.
11 His Honour continued:
No evident disadvantage therefore stems from determining the matter summarily rather than sending it to trial in either this or another action.
12 McPherson J continued to articulate the deed of compromise and its provisions in that case, concluding that they 'represent no obstacle to summary enforcement of the agreement'. At (11) he then concluded:
The result therefore is, in my opinion, that the case is one in which the compromise agreement may, without detriment to the parties, be properly enforced on motion in the action.
13 For the present case, as I understood the submissions of the plaintiff, both in writing and by counsel in oral argument, Dr Williams has a responsibility for obtaining the approval for subdivision of Precinct 1, within which there is the putative Lot 20 - marked on Annexure B to the Agreement - as one of what looks to be some 26 proposed lots to be created for that precinct.
14 The dispute essentially distils, after carving through a lot of surrounding material, to an issue over road access. More particularly, the issue is whether a proposed 'Bay Lane' is the appropriate way to obtain approval to subdivide in respect of Precinct 1 or not. Bay Lane is identified on a map on page 5 of a Form 1A – Application for Approval of Freehold or Survey Strata Subdivision, which is annexed as 'JBW13' to the affidavit of John Benedict Williams, sworn 10 May 2013. Bay Lane would run in a roughly north-westerly direction off Robinson Street. The parties differ on whether this route or some alternative means of access which, from the defendant's perspective, is less costly and less detrimental, is the more appropriate for the proposed subdivision.
15 What I assess as significant for a resolution of the present controversy is that the terms of the Agreement as appended to Registrar Whitby's Tomlin orders of March 2011, say nothing express about a particular road or its suitability. In fact, as has emerged in counsel's argument to me on 13 June, a specific performance orders have not yet been formulated, but the plaintiff would rely on par 2.1, which says in plenary terms:
The defendant shall, within 14 days of a written request by the plaintiff or the defendant's appointed agents, servants, contractors or nominees
2.1 execute any document reasonably required;
16 In that context I also note the following paragraphs:
2.2 do such things as may be reasonably required;
2.3 permit its name to be used in any proceedings in any court or tribunal for the purposes referred to in order 1 above.
17 The bland language of these paragraphs was largely replicated in the letter from [Dr] Ben Williams to Coral Bay Amalgamated Holdings dated 13 April 2013, annexed as 'JBW12' to Dr Williams' affidavit of 10 May. The letter states that execution of the Form 1A is 'reasonably required to effect the subdivision of Lot 46 to create a separate title for Precinct One'.
18 Paragraph 1 of the Agreement effectively authorises Dr Williams, or his agents to seek approvals to subdivide Lot 46 and obtain a separate certificate of title for the putative Lot 20.
19 Two significant things, therefore, arise from the Agreement. First, there is nothing at all express about agreeing to any particular road by reference to the defendant's obligations. Second, when proceeding to the allied question of assessing what is, to paraphrase par 2.1, 'reasonably required' vis-à-vis a document, issues of fact inherently present for determination. Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 observed that 'reasonableness', the so-called 'workhorse of the common law', ultimately depends on the circumstances of each action: [100].
20 Manifestly, this is not a case where by motion a plaintiff can effectively move for a summary judgment for specific performance orders. That would be inappropriate in the face of factual issues which are disputed and require resolution. On the facts he considered, Beech J reached a similar view in Thomas v Cummins.
21 Indeed, the verbal submission by counsel for the plaintiff seemed to work from an underlying premise that it would not be appropriate to move for a summary judgment for specific performance orders vis-à-vis requiring the signing of a Form 1A application annexed to Dr Williams' affidavit of 10 May 2013. What the plaintiff did seem to have in mind is effectively a contested evidentiary hearing, with each party putting extra materials before the court. It is within a format, more or less, that of a mini-trial in this action, that the plaintiff would seek to show a basis for an order for specific performance and thereby to compel the defendant to sign the particular Form 1A application.
22 However, the question for me now is not the merits or demerits of an enforcement order. The question is whether it is appropriate to proceed this way in the present action.
23 Having heard arguments and become acquainted with the potential issues that may arise here, first as regards the interpretation of the parties' agreement, then second, as to what would be involved in evaluating what is 'reasonably required', I am satisfied that the present dispute looms as raising complex legal and factual issues. What is or is not reasonable in terms of argument about road access in the context of the subdivision of Precinct 1 and the plaintiff's interest in the separate Lot 20 therein, looks to require the parties to apply their minds to the dimensions of a dispute which could involve expert evidence. It is clear the plaintiff has a strong interest vis-à-vis what has been promised him as regards Lot 20. But it is equally clear that a subdivision of Precinct 1 carries wider considerations as regards the 25 other potential lots to be carved out by a viable planning scenario that addresses the defendant's interests as well. What is reasonable or what is not reasonable in that overall context presents as a substantive evaluation of both fact and law. An exercise of such dimensions within the framework of the existing proceedings might be open theoretically, but I would assess it as inappropriate.
24 Rather the more appropriate path by which enforcement relief should be pursued by this plaintiff (once more precisely formulated) is by fresh proceedings. It is clear that the plaintiff is seeking to enforce the settlement embodied in the Agreement. I reach this conclusion by reference to an evaluation of the same factors Beech J referred to in Thomas v Cummins at [28] and the cases there discussed in terms of how substantial are the questions to be determined, whether questions of credibility are likely to arise and whether pleadings and discovery are desirable.
25 In illustration, I note that the affidavit of Alistair John Brogan sworn 12 June 2013 raises a question of whether, in fact, there would be any prospect of the Shire of Carnarvon ever agreeing to the plaintiff's proposed 'Bay Lane' road access. There presents, therefore, a further issue over whether pursuing a proposal currently opposed by the local authority would be a viable way to proceed, in any event.
26 Notwithstanding the Tomlin orders made by Registrar Whitby, my view is that it presents as inappropriate to try and resolve complicated issues within the context of the present proceedings. The appropriate way of doing that is in fresh proceedings.
27 Having said that, by the CMC list, this court is amenable to ordering whatever suitable truncations or procedural adjustments it can, in order to advance an efficient and speedy resolution of an underlying dispute. I would countenance any fresh enforcement proceedings if commenced, being run in the CMC list before me, and for an incorporation and reading within the fresh proceedings of any affidavit materials from the existing proceedings, so the fresh proceedings could effectively advance speedily. But the key issues in that dispute still need to be crystallised through pleadings in the fresh proceedings. There may be a need for some limited discovery and expert evidence, under appropriate programming orders.
28 Case management measures could hopefully, ameliorate the scale of what is required by way of attempted enforcement in fresh proceedings. That is appropriate, bearing in mind the magnitude of the underlying planning issues involved and the readily apparent scale of an exercise in evaluating the reasonableness of proposals or counterproposals as regards road access in a subdivision. These new issues are, on the face of it, complex and could potentially consume a significant amount of court time in any eventual determination.
29 My view, therefore, is that fresh proceedings need to be commenced. I would, therefore, order the plaintiff's application for enforcement of the Tomlin orders of 9 March 2011, be refused. But it is not appropriate that these proceedings be dismissed per se. They are, and will remain, stayed in accord with Registrar Whitby's order. My orders foreshadow that if the plaintiff wishes, he may bring fresh proceedings. If he does, so be it.
30 In the prevailing circumstances, I will reserve the costs of the plaintiff's enforcement applications, including those reserved on 6 June 2013 and of the hearing on 13 June 2013. There was a late development in terms of a filing of a significant amount of material.
31 If nothing happens by way of fresh proceedings, a motion may be brought on and then I will deal with reserved costs at that point.
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