WILLIAMS v Grainger - [2002] WASC 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WILLIAMS & ANOR -v- GRAINGER & ORS [2002] WASC 46

CORAM: HASLUCK J

HEARD: 18 FEBRUARY 2002

DELIVERED : 21 MARCH 2002

FILE NO/S: CIV 1171 of 2000

BETWEEN: RUTH EILEEN WILLIAMS
First Plaintiff
MARK CURTIS WILLIAMS
Second Plaintiff
AND
GEOFFREY ORMOND GRAINGER
First Defendant
JOAN HARRINGTON GRAINGER
Second Defendant
WESFARMERS DALGETY REAL ESTATE (WA) PTY LTD (ACN 009 238 993)
WESFARMERS DALGETY LTD (ACN 008 743 217)
Third Defendants

FILE NO/S :CIV 2156 of 2000

BETWEEN :WESFARMERS DALGETY LIMITED (ACN 008 743 217)
DALGETY LIMITED (ACN 008 996 218)
PRIMARY INDUSTRY BANK OF AUSTRALIA (ACN 001 621 129)
Plaintiffs
AND
RUTH EILEEN WILLIAMS
First Defendant
GALE CURTIS WILLIAMS
Second Defendant
(BY ORIGINAL ACTION)
RUTH EILEEN WILLIAMS
First Plaintiff
GALE CURTIS WILLIAMS
Second Plaintiff
AND
WESFARMERS DALGETY LIMITED (ACN 008 743 217)
DALGETY LIMITED (ACN 008 996 218)
PRIMARY INDUSTRY BANK OF AUSTRALIA (ACN 001 621 129)
First Defendants
JIM DYER
Second Defendant
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Application to consolidate various actions - Claims arising out of a property transaction - Discrete issues - Application to consolidate refused - Turns on own facts

Legislation:

District Court of Western Australia Act 1969, s 76

Fair Trading Act 1988

Rules of the Supreme Court 1971, O 83 r 1, O 83 r 2

Result:

Application refused

Category: B

Representation:

CIV 1171 of 2000

Counsel:

First Plaintiff                :     Mr N W McKerracher QC & Ms L M McFarlane
Second Plaintiff            :     Mr N W McKerracher QC & Ms L M McFarlane
First Defendant             :     Mr M G Clay
Second Defendant         :     Mr M G Clay
Third Defendants          :     Mr T Lampropoulos

Solicitors:

First Plaintiff                :     O'Connor Partners
Second Plaintiff            :     O'Connor Partners
First Defendant             :     Martin De Haas
Second Defendant         :     Martin De Haas
Third Defendants          :     Julian Lentzner

CIV 2156 of 2000

Counsel:

Plaintiffs:     Ms K A Vernon
First Defendant             :     Mr N W McKerracher QC & Ms L M McFarlane
Second Defendant         :     Mr N W McKerracher QC & Ms L M McFarlane
(BY ORIGINAL ACTION)
First Plaintiff                :     Mr N W McKerracher QC & Ms L M
McFarlane

Second Plaintiff : Mr N W McKerracher QC & Ms L M
McFarlane

First Defendants : Ms K A Vernon
Second Defendant : Ms K A Vernon
(BY COUNTERCLAIM)

Solicitors:

Plaintiffs:     Metaxas & Vernon
First Defendant             :     O'Connor Partners
Second Defendant         :     O'Connor Partners
(BY ORIGINAL ACTION)
First Plaintiff                :     O'Connor Partners
Second Plaintiff            :     O'Connor Partners
First Defendants           :     Metaxas & Vernon
Second Defendant         :     Metaxas & Vernon
(BY COUNTERCLAIM)

Case(s) referred to in judgment(s):

Cameron v McBain [1948] VLR 245
Payne v British Time Recorder Co Ltd & WW Curtis Ltd [1921] 2 KB 1
Temwood Holdings Pty Ltd v Oliver & Ors, unreported; SCt of WA; Library No 980115; 13 March 1998

Case(s) also cited:

Bellview Investments Pty Ltd v Deans Investments Pty Ltd SCNT 148/97; 18 December 1997
Hinchcliffe v Carrol; Carrol v Hinchcliffe & Stowe [1969] VR 164
Maguire & Tansey v Makaronis (1997) 188 CLR 449
Samuel Keller (Holdings) Ltd v Martins Bank Ltd [1970] 3 All ER; [1971] 1 WLR 43
Todd v Jones; Jones v Public Trustee [1969] VR 169

HASLUCK J: This is an application by the plaintiffs in 1171 of 2000, namely, Ruth Eileen Williams and Mark Curtis Williams, for an order consolidating the proceedings with Supreme Court action 2156 of 2000. A further order is sought that District Court action 237 of 1999 be remitted to the Supreme Court and also consolidated with the proceedings.
If provision is made for consolidation, certain programming orders will then be required. It is apparent from the way in which the matter was argued at the hearing before me that the plaintiffs will seek to have 1171 of 2000 characterised as the leading action and will seek leave to file and serve a consolidated statement of claim within 14 days of any order for consolidation. It seems that application will also be made to have the husband of the first plaintiff, Gale Williams, added as a party to the action with his role in the matter being reflected in the new statement of claim.
In the event of the District Court action being remitted to the Supreme Court and consolidated with the other proceedings in the manner proposed by the plaintiffs, it seems that application will be made by the plaintiffs for a stay in respect of the judgment that has already been obtained in the District Court proceedings.
I will come to the circumstances giving rise to the various proceedings in due course. In the meantime, I note that by s 76 of the District Court of Western Australia Act 1969 a Judge of the Supreme Court may, upon the application of any of the parties to an action brought in the Court, if he thinks fit, order that the action be tried or heard in the Supreme Court.
Order 83 rule 1 of the Rules of the Supreme Court 1971 provides that whenever any issues between the same parties can be conveniently tried together, or whenever it appears desirable notwithstanding that the parties are not identical and that the evidence necessary to prove the issues is not identical, the Court may consolidate any number of causes or matters in order to quiet all claims relating to one subject matter, transaction or event, or to substantially similar subject matters, transactions or events.
By O 83 r 2, in the exercise of the jurisdiction in question the Court may order the consolidation with any action pending in the Supreme Court of any action remitted to the Supreme Court from any other court.
There are a number of decided cases bearing upon the principles relevant to the exercise of the Court's discretion concerning consolidation. In Payne v British Time Recorder Co Ltd & WW Curtis Ltd [1921] 2 KB 1 Scrutton LJ said at p 16 that where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matter should be disposed of at the same time the Court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action should be tried.
In Temwood Holdings Pty Ltd v Oliver & Ors, unreported; SCt of WA; Library No 980115; 13 March 1998 Master Sanderson noted at p 16 that O 83 r 1 gives no real guide as to circumstances when an action ought to be consolidated. However, it does seem to be an appropriate procedure when a multiplicity of actions could be avoided, thus saving time and expense. See Cameron v McBain [1948] VLR 245 at 247.
The circumstances giving rise to the present application, which are said to justify the orders sought, are set out in lengthy affidavits filed and served on behalf of the plaintiffs. The pleadings in the various proceedings are annexed to these affidavits. I am referring to the affidavit of Mark Williams sworn 29 June 2001 and the affidavit of Louella McFarlane sworn 6 July 2001. For the sake of an orderly narrative I will draw principally upon these affidavits but without purporting to accept the assertions made in regard to facts and matters in dispute. (I note that the narrative contained in these materials is confirmed in the affidavit of Gale Williams sworn 2 July 2001 which was filed and served in 2156 of 2000).
It seems that for many years the plaintiffs, have been conducting a farming business on a property known as "Newdegate Farm", being more particularly Roe Location 2303 owed by Gale and Ruth Williams. It has been their home for 24 years.
Mr and Mrs Grainger were the proprietors of a farming property known as "Kensey Park" (comprising Kent Locations 1658 and 1659) that was situated 40 kilometres from Newdegate Farm. The plaintiffs allege in par 4 of the statement of claim in 1171 of 2000 that at all material times Mr Grainger was an employee of the first named third defendant, Wesfarmers Real Estate or, alternatively of the second named third defendant Wesfarmers Dalgety, and an agent of those parties. It is a matter of acute controversy as to whether he was in fact an agent of those parties in respect of the conduct attributed to him by the plaintiffs.
The plaintiffs say that the origin of the dispute giving rise to the various proceedings lies in the events leading up to a number of transactions which were consummated in May 1998 as a consequence of the plaintiffs' wish to expand their farming operations by obtaining a stake in Kensey Park.
The plaintiffs say that various representations were made by Mr Grainger concerning Kensey Park. These representations were made by him personally and in his capacity as an employee or agent of the third defendants. According to the plaintiffs, he represented that a purchaser of Lot 1658 could clear certain unfelled land forming part of the lot comprising about 400 hectares, that the total arable area of Lots 1658 and 1659 (being the two lots comprising Kensey Park) was at least 5,442 acres, that the remnant vegetation obligations to which Lot 1658 was expressed to be subject were normal ongoing obligations only, and that the two lots constituted good and/or excellent farming land with a good superphosphate history. In the course of argument these were called the "property representations."
The plaintiffs say in the 1171 of 2000 claim that in reliance upon these representations they were induced to enter into certain transactions being, more particularly, an agreement dated 18 May 1998 made by Ruth Williams as trustee of the Brown Trust to lease Lot 1658 for a period expiring on 18 December 1998 and including an option to purchase the land ("lease 1"), an agreement dated 18 May 1998 made by Ruth Williams as trustee of the Brown Trust to lease Lot 1659 for a period expiring on 28 February 2000 and including an option to purchase ("lease 2") and a contract dated 20 May 1998 made by Mark Williams as trustee of the Mallee Trust to purchase Lot 1658.
I note in passing, as to the contract of sale, that the agreement between the parties is constituted by a Wesfarmers Dalgety offer and acceptance form. The total purchase price is described as $320,000. The contract is conditional upon the purchaser obtaining finance from a financial institution of his choice prior to the nominated settlement date of 18 July 1998. A further condition of the purchase of Lot 1658 was that the purchaser is able to lease Lot 1659 until 28 February 2000 with provision for an option to purchase. The plaintiffs were to have immediate access to both lots on the signing of the contract of sale.
Mr Mark Williams says in his affidavit that in order to obtain finance a farm budget was prepared by he and Mr Jim Dyer, the Area Branch Manager of Wesfarmers Dalgety Limited, directed to cropping wheat and barley, rearing sheep and producing wool on Kensey Park. Various agreements were then entered into with Wesfarmers Dalgety Limited, Dalgety Limited and the Primary Industry Bank of Australia Limited to secure the relevant advances.
Mr Williams says that in the course of the negotiations various misrepresentations were made by Jim Dyer and the financiers to members of the Williams family concerning the amounts to be provided and the manner in which such amounts were to be secured. For example, it is said that Ruth Williams and Gale Williams were not informed that the effect of the mortgage and bill of sale provisions was to give the financiers security for any sum that might be owing on any account or that might otherwise become owing by the Brown Trust to the financiers. I will not traverse the full range of security documents but it is apparent that the farming operations on Newdegate Farm were affected by the security arrangements.
I digress briefly to draw attention to one significant aspect of the affidavits and pleadings bearing upon the so‑called "financial representations". The plaintiffs do not appear to assert that Mr and Mrs Grainger played any active part in the making of the financial representations which are now said by the plaintiffs to have induced the plaintiffs to enter into the security arrangements.
Having taken possession of Kensey Park pursuant to the leasing arrangements, it seems that the plaintiffs formed a view that the property representations made by Mr Grainger were false and misleading. Accordingly, by notice of rescission dated 17 August 1998 solicitors (Solomon Brothers) acting on behalf of Mark Williams purported to rescind the contract of sale on the grounds of misrepresentation and misleading conduct contrary to provisions of the Fair Trading Act 1988.
The notice of rescission dated 17 August 1998 concludes with par 3 to this effect:
"For the avoidance of doubt, this notice does not purport to terminate an Agreement to Lease dated 18 May 1998 between the Vendor and the trustee of the Brown Trust in respect of Kent Location 1659 being the whole of the land comprised in Certificate of Title Volume 1683 Folio 053 nor an Agreement to Lease dated 18 May 1998 made between the Vendor and the trustee of the Brown Trust in respect of Kent Location 1658 being the whole of the land comprised in Certificate of Title Volume 1583 Folio 054."
I understand from the evidentiary materials before me that as foreshadowed by the concluding passage of the notice of rescission just mentioned, the plaintiffs remained in possession of Kensey Park. Indeed, it is apparent from the pleadings in 2156 of 2000 that towards the end of 1998 and in early 1999 the plaintiffs renegotiated certain aspects of the financial arrangements with the financiers in order to continue with the leases.
For the moment, one example will suffice. It is said that by letter dated 28 July 1998 the financiers offered to Ruth Williams in her own right and as trustee of the Brown Trust a seasonal finance facility with an approved budget limit of $361,500, such monies to be repaid on 31 March 1999, and a term loan of $500,000 to be repaid on 31 March 2013. These advances would be secured, inter alia, by bills of sale and a mortgage affecting the Newdegate Farm. Later, by letter dated 16 October 1998 the financiers agreed to amend the terms of the seasonal facility by increasing the budget limit to $420,000 and by decreasing the amount to be advanced pursuant to the term loan to $250,000. The financiers say that on or about 4 February 1999 Ruth Williams requested the financiers to amend the limit of the seasonal facility to $393,500 and this was approved by letter dated 4 February 1999. Subsequently, by letter dated 13 April 1999 the financiers agreed to amend the seasonal facility by increasing the approved budget limit to $476,500.
It is apparent, then, that the plaintiffs continued to negotiate with the financiers, and to obtain further advances, notwithstanding their misgivings about the property representations. The plaintiffs say that they were obliged to act in this manner, and to proceed with the leasing arrangements, in order to mitigate their loss.
It was against this background that on 20 January 1999 Mr and Mrs Grainger issued a writ of summons out of the District Court (Action 237 of 1999) against Mr and Mrs Williams and their son Mark Williams (the plaintiffs in the proceedings before me) seeking an order for possession of the land known as Kensey Park and damages for breaches of the agreements entered into between the parties. The relevant statement of claim asserts that the leases in question were to determine on 18 December 1998 if the purchase of Lot 1658 was not settled by that date. Settlement had not been effected in the required manner with the result that Mr and Mrs Grainger were entitled to possession and damages referable to loss of rent and mesne profits.
It was common ground at the hearing before me that Mr and Mrs Grainger applied for and obtained summary judgment. As a consequence of that judgment, they were able to recover the Kensey Park farm and resell the same. An appeal against the summary judgment, being FUL 24 of 2001, was initiated but has now fallen away. Costs have been taxed and paid. This means that the District Court proceedings are now concluded save for the assessment of damages.
I note in passing that the Williams' defence to the Graingers' District Court claim did not directly bring into issue questions of fault or liability referable to the property representations and financial representations. Reference was made in the statement of defence to the contract of sale being purportedly rescinded pursuant to a Notice of Rescission dated 17 August 1998 in which mention was made of misrepresentations. However, that plea was put up for a different purpose, namely, with a view to persuading the Court that the Graingers' were not entitled to immediate possession of Kensey Park. It follows that no issue estoppel has arisen in respect of the property and financial representations.
On 15 February 2000 the plaintiffs initiated the Supreme Court proceedings the subject of this application, namely, 1171 of 2000, joining as defendants Mr and Mrs Grainger, Wesfarmers Dalgety Real Estate and Wesfarmers Dalgety Limited. As I have already indicated, the thrust of the claim in this action is referable to misrepresentations allegedly made by Mr Grainger concerning the quality of Kensey Park prior to the plaintiffs entering into the contract of sale and the leasing arrangements. The plaintiffs seek a declaration that the contract of sale has been rescinded and damages.
I digress briefly to note that the claim in this matter was apparently preceded by earlier proceedings in which allegations of fraud were advanced. Those proceedings fell away owing to difficulties in presentation of the claim.
The present proceedings 1171 of 2000 have been delayed by numerous interlocutory applications. Further, the plaintiffs were obliged to change their solicitors from Solomon Brothers to their present solicitors owing to a perceived conflict of interest on the part of the former firm. It was common ground at the hearing before me that pleadings in the present action 1171 of 2000 have not yet been finalised. If an order for consolidation is made it will be a long time before the matter is ready to be entered for trial. As I have already indicated, a fresh statement of claim in the consolidated proceedings will have to be filed and served, with the addition of Gail Williams as a plaintiff, and this will lead inevitably to the preparation of further pleadings and a likelihood that further issues concerning discovery will arise.
Mark Williams provides an explanation for the delay in his affidavit. He refers to the change of legal representation, difficulties in communication (bearing in mind that Newdegate is about five hours drive south of Perth), the demands of the family farming operations and the nature of the postal service in Lake Grace.
Mr Williams says in his affidavit that the issues likely to arise in these proceedings are whether or not the property representations were made by Mr Grainger as alleged and whether the vendor was, at the relevant times, an employee and/or agent of the defendants. Further issues will arise as to whether the matters complained of amounted to misleading and deceptive conduct, fraud or both, and whether or not, and if so to what extent, the third defendants are liable for the consequences of Mr Grainger's conduct. Further issues may also arise as to the nature and extent of any losses suffered by the plaintiffs and as to whether they are causally connected to the property representations.
The suggestion is made that in the event of the various proceedings being consolidated issues are likely to arise as to whether or not, as a result of the alleged financial representations, or as a result of the conduct and inter‑relationship between Mr Grainger and the financiers, the financiers securities are void or voidable. Further, there will be an issue as to whether and to what extent the actions of Mr Grainger and the financiers have caused the plaintiffs' loss.

I pause there to say that issues of this latter kind are not presently reflected in the statement of claim in 1171 of 2000, nor are they reflected in the claim in 2156 of 2000. As I have already noted, it is questionable whether any of the pleadings to date clearly articulate an assertion that Mr and Mrs Grainger, or either of them, were actively involved in conduct comprising the alleged financial representations or leading to the making of the financial arrangements. In the course of argument at the hearing before me it seemed that counsel for the plaintiffs was leaning very heavily upon the undisputed but legally equivocal fact that Mr Grainger was an employee of Wesfarmers Real Estate at the relevant time.
On 24 August 2000 Wesfarmers Dalgety Limited, Dalgety Limited and Primary Industry Bank of Australia Limited, being the parties I have called collectively "the financiers", commenced their own separate proceedings by writ of summons in action 2156 of 2000 against Ruth and Gale Williams. The thrust of the claim in these proceedings was that members of the Williams family were parties to various transactions whereby advances made to the borrowers were secured by security documents such as the bills of sale and mortgage I mentioned earlier. For example, the financiers alleged that in breach of the terms of the seasonal facility Mrs Williams refused, neglected or failed to pay the amount advanced in the prescribed manner and that as a consequence of related steps by way of enforcement the financiers were entitled to recover the amounts due.
Mr and Mrs Williams responded with a lengthy statement of defence and counterclaim. They joined the alleged author of the financial program, Jim Dyer, as a party to the proceedings. The statement of defence asserts that the financiers are bound by certain representations made by Dyer as an agent acting on their behalf. The consequence is that certain of the security documents should be set aside or varied so as to reflect truly the understanding of the Williams family members as to the manner and operative effect of the security documents. It is material to note that the pleadings in 2156 of 2000 do not expressly seek to link the conduct alleged against Mr Grainger in action 1171 of 2000 to the conduct of Mr Dyer and the financiers, other than to suggest that the financiers were aware that the Williams family was in dispute with Mr and Mrs Grainger as to possession of the Kensey Farm.
I note also that in that part of his affidavit dealing with the financial representations Mr Mark Williams does not appear to suggest that Mr and Mrs Grainger, or either of them, were involved in the financial arrangements or the making of financial misrepresentations.
It was common ground at the hearing before me that the proceedings known as 2156 of 2000 have progressed at a much faster rate. Pleadings have been finalised and the matter is close to being listed for trial.
It is against this background that I must now return to the application for consolidation. In doing so, I have in mind the principles bearing upon such an application that I mentioned earlier.
Counsel for the plaintiffs in 1171 of 2000 (being the parties seeking an order for consolidation) drew attention to and placed considerable emphasis upon the fact that the District Court action and the two subsequently commenced Supreme Court suits can be said to have a common origin in the events reflecting the desire of the Williams family to expand their farming operations to Kensey Park.
Reference was made also to the presence of parties common to the various proceedings and to the fact that many of the events occurred in close proximity. It is said that common evidence will have to be produced at the trial of the various proceedings. Such evidence includes the two leases, the contract of sale, and supporting documentation such as property searches and security documents. It is said further that if the plaintiffs are successful in their claims against Mr and Mrs Grainger and their claims against the financiers (presently expressed as a counterclaim in 2156 of 2000) there will be common elements in the process of assessing damages.
The plaintiffs also seek to identify a degree of inter‑connection between 1171 of 2000 and 2156 of 2000 in that the two year farming program prepared by Mark Williams and Mr Dyer in support of the application for finance was dependent upon the property representations allegedly made by Mr Grainger concerning the arable area of the Kensey Park farm, unfelled land, the remnant vegetation obligations and the quality of the farming land. It is said further that the presence of these representations continued to affect the negotiation and renegotiation of the farming arrangements. As to this, however, I notice that an assertion of this kind is not presently reflected in the pleadings.
I must remind myself also, upon looking at the other side of the coin, that the financial representations are not said to have had an underlying effect upon the property representations. These representations are not said to have induced or influenced the leasing arrangements and contract of sale. Mr Grainger was an employee of Wesfarmers Real Estate, but there is no clearly articulated assertion in the evidentiary materials or any of the pleadings to date that he encouraged the plaintiffs to believe that finance of the kind eventually obtained would be available from related entities in order to carry into effect the expansion into Kensey Park.
It therefore strikes me that if the proceedings were consolidated as proposed there are likely to be lengthy periods at the trial of the action where counsel for the Graingers and counsel for the financiers will not be playing an active part in the exploration of certain evidentiary issues.
The plaintiffs submit further in support of their application that the financiers will not suffer any prejudice if action 2156 of 2000 is consolidated because the income from the sale of crops from the Newdegate Farm is currently being channelled straight to the financiers in any event. The plaintiffs continue to farm and maintain Newdegate Farm as their home, and as their investment, and the financiers face no risk to the securities they have over Newdegate Farm.
It is said further that the plaintiffs in the District Court action will not suffer any substantial prejudice if their assessment of damages is delayed because they have already recovered possession of the Kensey Farm and resold the same. The question of their financial liability, if any, is brought into issue by Supreme Court action 1171 of 2000 with the result that assessments of damages should be dealt with in conjunction, having regard to the outcome of the proceedings in the Supreme Court.
Mr and Mrs Grainger and the financiers are opposed to the application for consolidation. They say, in general terms, that there is only a superficial similarity between the matters in issue in the various proceedings. The presence of common properties and parties may suggest that there is common ground between the actions but a close analysis of the pleaded issues reveals that the matters in controversy are quite distinct. The issues cannot be conveniently or desirably tried together because the range of evidence differs in each case and there is no real likelihood of inconsistent findings being made by the Court if the matters are tried on different occasions.
Further, these parties say that the various proceedings are at different stages of advancement. It would be unfair for the progress of discrete claims to be delayed by the additional layers of complexity which are bound to follow from the making of a consolidation order. The financiers, as the plaintiffs in 2156 of 2000, say in particular that, with the passage of time, the accumulated debt has exceeded, or in the near future will exceed, the value of the securities. The financiers rely upon an affidavit to this effect sworn 14 September 2001 by John Ellwood, the National Credit Manager of Wesfarmers Dalgety Ltd. He said that by reason of the deficiency in the value of the Williams family assets the financiers would be prejudiced by the delay that was bound to be associated with any consolidation of the actions.
Counsel for the financiers singled out some further considerations that were said to weigh against the proposed orders for consolidation. To date, the financiers have been represented by different solicitors and counsel. There would be a wastage of accumulated knowledge if the brief had to be handed over to one set of legal advisers, and further wastage at trial if counsel were obliged to sit through issues concerning the property representations which are not of direct concern to the financiers. Counsel for the plaintiffs in 2156 of 2000 went on to say this:
"At the end of the day, in our submission, there would be no real prejudice to the Williams family if these matters were not consolidated, because it would mean that if action 2156 of 2000 proceeded and the plaintiffs were unsuccessful, of course, there would be no prejudice to the Williams family. If 2156 proceeded and the Williams family were unsuccessful in the sense that a judgment was entered against them, in my submission, that would be the appropriate time for them to seek a stay of any execution of that judgment pending the determination of 1171 of 2000, and then that could be dealt with on its merits.
Similarly, in relation to 1171 of 2000, there could be no prejudice to the Williams family, because what they are claiming there is damages and there's no suggestion, of course, that Wesfarmers wouldn't be able to pay any award of damages, so at the end of the day we say that the issues are quite distinct and separate. They are capable eminently of being dealt with separately."
These submissions recognised that if the plaintiffs succeed in 1171 of 2000 and are able to persuade the Court that the property representations gave rise to various consequential losses it might not be possible to quantify the losses fully until the outcome of 2156 of 2000 was known. The indications are, however, that 2156 of 2000 will be tried first. Further, and in any event, the assessment of damages in either case could be postponed or proceeded with (as the case may be) subject to special directions, (provided persuasive reasons were presented to the Court for the making of such directions).
Counsel for Mr and Mrs Grainger pointed out that summary judgment has already been entered in District Court action 237 of 1997. Costs have been awarded and taxed and the only outstanding issue is the assessment of compensation/damages under the lease prior to termination and in trespass following termination. An appeal against this decision has fallen away and there can therefore be no question of any inconsistent finding being made because the summary judgment gives rise to a res judicata in respect of the issues reflected in the relevant pleadings. This weighs heavily against the action being remitted to the Supreme Court.
Further, and in any event, counsel argued, it is questionable whether an order for consolidation can be made in respect of proceedings that have been completed. A consolidation order presumes ongoing proceedings. He submited further, for the reasons I have already touched upon, that Mr and Mrs Grainger are not in any real sense implicated in the controversy between the plaintiffs and the financiers the subject of action 2156 of 2000 and it would be unnecessarily expensive (and therefore unfair) for Mr and Mrs Grainger to be required to play a part in those proceedings. Counsel was adamant that it has never been alleged in any pleading that the Graingers had any involvement in the financial arrangements.
In my view, the submissions made on behalf of Mr and Mrs Grainger and the financiers are persuasive. Upon careful analysis, there is not a sufficient connection between the issues in the various actions to make it convenient or desirable that the actions be consolidated. The dispute between the plaintiffs and Mr and Mrs Grainger involves one series of events. The materials before me indicate that Mr Grainger was not involved in the negotiations of the financial arrangements, and the fact that further advances were applied for and obtained after doubts had been raised concerning the truth of the property representation strongly suggests that the property representations stand apart and must be considered separately from the financial arrangements.
It is now too late to bring together the District Court action and action 1171 of 2000 with a view to resolving matters in issue such as the entitlement to terminate the relevant contractual relationships and the assessment of loss. The Graingers have entered judgment and resold the land. Certain matters of controversy remain in issue which may or may not give rise to an adjustment of the Graingers' entitlement to damages but that is an issue which will depend upon the outcome of action 1171 of 2000. Matters of this kind may possibly require that the assessment of damages in the District Court action be stayed until 1171 of 2000 has been disposed of. My present inclination is to make an order remitting the District Court action to this Court so that if such an application is made this Court will be empowered and better placed to deal with any application for a stay on its merits.
The matters in issue in 2156 of 2000 are of a different order and do not sufficiently involve the Graingers to make it convenient or desirable that 1171 of 2000 and 2156 of 2000 be consolidated and heard together. The effect of a consolidation order would bind the parties to participate in a trial which would involve many matters not of immediate concern to each party at every stage of the trial. In my view, because the issues in each case are discrete, the risk of inconsistent findings being made by the Court is too remote to justify an order of the kind proposed. If difficulties arise concerning the assessment of damages then these can be addressed by an application for a stay or special directions.
In summary, then, I will dismiss the application for consolidation and related orders. I am not persuaded, having regard to the criteria in O 83 r 1, that it is convenient or desirable for the issues raised in the three actions to be tried together. I will hear from the parties as to whether any further orders or directions are required.