Wunda Projects Australia P/L v Kyren P/L (No 2) - [2010] SADC 142

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WUNDA PROJECTS AUSTRALIA P/L v KYREN P/L (No 2)
[2010] SADC 142
Ruling and Judgment of His Honour Judge Herriman
29 November 2010
PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL - OTHER MATTERS
Application to re-open case after reasons for judgment delivered but before final judgment pronounced - application to amend defence and cross claim to plead further matters refused. Final judgment entered. Discussion of principles.
Building Work Contractors Act 1995 (SA) s 6(2), referred to.
Ethnic Earth Pty Ltd v Quoin Technology Pty Ltd (Receivers and Managers Appointed) (In Liquidation) & Ors (No 2) [2005] SASC 112; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Wollongong Corporation v Cowan (1955) 93 CLR 435; Firm of RMKRM v Firm of MRMVL [1926] AC 761; Marginson v Ian Potter & Co (1976) 136 CLR 161; John Irving as liquidator of Mawson KLM Holdings P/L (in liq) & Anor v Starmaker (No 51) P/L (No 2) [2005] SASC 310, applied.

WUNDA PROJECTS AUSTRALIA P/L v KYREN P/L (No 2)
[2010] SADC 142

On 29 July 2010 I delivered my reasons for judgment in this matter and on 3 August 2010 made a costs order in favour of the plaintiff (‘Wunda’).
There remained, however, an outstanding issue of Wunda’s entitlement to recover GST on portion of the judgment sum. On that topic and in the course of its submissions on 3 August 2010, the defendant (‘Kyren’) argued that the plaintiff could not recover GST on any part of the judgment sum as it was not itself registered for GST purposes: that the ABN attaching to invoices it had rendered to Kyren belonged to another entity, a partnership, albeit one of which Wunda was a member.
In response to that submission the plaintiff’s director, Bruno Marveggio, filed an affidavit on 25 August 2010 (‘the Marveggio affidavit’) (FDN 246) deposing to the facts, inter alia:
(1)that the ABN 90 122 973 905 under which all the plaintiff’s invoices had been presented attached to an entity known as Wunda Projects Australia Partnership (‘the partnership’);
(2)that that partnership comprised the plaintiff, Anna Maria Marveggio as trustee of the WPA Trust and WPA Nominees Pty Ltd as trustee of the Wunda Projects Trust;
(3)that that partnership entered into contracts on behalf of Wunda and operated Wunda for and on behalf of the partnership;
(4)that Wunda issued tax invoices under its own name but, as it always acted on behalf of the partnership, quoted the partnership ABN on them as it was the partnership that was registered for GST;
(5)that Wunda had entered into the instant contract and pursued this litigation on behalf of the partnership;
(6)that until Kyren had raised the GST issue in submissions as to appropriate orders, he had not appreciated that the distinction between Wunda and the partnership was relevant to any issue in the action.
In conjunction with that affidavit Wunda filed a further List of Documents identifying the documents relevant to those disclosures.
Upon receipt of that affidavit, Kyren filed a further interlocutory application on 27 August 2010 (FDN 254) wherein it sought, inter alia:
2.    The defendant be given leave to re-open its case.
3.    That the costs order made on 3 August 2010 be revoked.
4.    That the Court receive submissions that Wunda’s claim be dismissed on the basis that Wunda entered into the contract as the agent of an undisclosed principal namely Wunda Projects Australia Partnership and accordingly has no legal standing to sue on the contract the subject matter of the within proceedings.
5. In the alternative to paragraph 4, to grant leave to Kyren to amend its defence to plead that the true party with whom it was contracting was unlicensed and to plead s.6(2) of the Building Work Contractors Act 1995 and which precludes the recovery of any fee, other consideration or compensation under or in relation to a contract.
6.    Consequential orders be made as to the filing of a reply to the amended defence and any further discovery arising from the amended pleadings.
7. The Court re-opens the hearing to receive evidence (if the same is not admitted) that the Wunda Projects Australia Partnership has never held a license [sic] under the Building Work Contractors Act 1995.
8. That the Court receive further submissions on the effect of s.6(2) of the Building Work Contractors Act 1995 and the orders which ought to be made in the proceedings.
I heard preliminary argument on these matters on 1 September and then determined that even if Wunda was not registered for GST and could not rely upon the partnership’s registration to levy it, as Kyren contended, it nonetheless fell under a statutory obligation to levy that impost and remit the proceeds to the Australian Taxation Office (or otherwise claim any credits to which it was entitled) and that that duty conferred upon it an entitlement to recover those moneys on all supplies made to Kyren. Accordingly, I assessed and added a GST provision to the judgment sum.
In the face of Kyren’s application, however, final judgment was not entered and I heard argument on it on 18 October and 3 November 2010. In the intervening time, Kyren had abandoned its pursuit of paragraph 4, conceding that the plaintiff, as an undisclosed agent, might sue and be sued on the contract, but it had otherwise orally applied to join the remaining members of the partnership as parties in the action and for leave to amend its defence further to plead that in the face of my finding that the parties had agreed that tax invoices rendered by Wunda to Kyren were to be regarded as conclusive and payable, at no relevant time did the plaintiff ever provide Kyren with what could properly be described as a tax invoice within the meaning of the GST legislation, hence that Kyren never became liable to pay Wunda’s invoices. That contention, it said, also called into question the reliance in my reasons on Kyren’s failure to comply with Wunda’s Notices to Show Cause.
Kyren then filed a draft Fifth Amended Defence and Set Off to Further Amended Statement of Claim (‘Fifth Amended Defence’) setting out the amendments its application, as enlarged, sought to achieve. Those amendments were not then carried forward into its cross claim but it has now filed a formal application (FDN 263) seeking leave in the form of an annexed draft to join the remaining members of the partnership as defendants in the cross claim and leave to file and serve a Sixth Amended Cross Claim (‘Sixth Amended Cross Claim’).
It has otherwise provided a draft of its intended Notice of Appeal and I accept that it intends to lodge that document once final judgment is pronounced.
Argument thus focussed upon whether the defendant ought to be granted leave to re-open its case; to join the other members of the partnership as parties in the action; and to amend its defence and cross claim in terms of the draft documents filed by it.
Issues as to any orders consequential upon the grant of such leaves were left for further consideration, as was the separate defence application for a stay of execution.
As to the question of re-opening one’s case, both parties referred me to the passage in Ethnic Earth Pty Ltd v Quoin Technology Pty Ltd (Receivers and Managers Appointed) (In Liquidation) & Ors (No 2)[1] per Bleby J:
[1] [2005] SASC 112 at [10] and [11]
Although no orders have been made, a fundamental principle of litigation requires that there be an end to litigation, and that the power to re-open to enable a re-hearing must be exercised with great caution: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; State Rail Authority (NSW) v Codelfa Construction Pty Ltd (1982) 150 CLR 29.
It is apparent that the defendants now wish to resile from forensic decisions made by their advisers during the course of the hearing. In University of Woolongong v Metwally (No.2) (1985) 59 ALJR 481 the Full Court of the High Court said, at 483:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and (sic) opportunity to do so.”
See also Copping v ANZ and McCoughan Ltd (1996) 67 SASR 525, Lander J at 569.
Then at [25]:
Ultimately, resolution of the application must depend on how best the interests of justice may be served. While the defendants may now feel aggrieved that the case was not conducted in a way which they consider may have produced a different answer, it is far from certain that the answer would have been different, and the interests of justice are wider than the interests of the defendants. The principles of finality in litigation, holding parties to their agreement in the way they choose to conduct the trial through their counsel and the prevention of undue prejudice to the opposing party require, in the circumstances of this case, that the defendants’ application by the notice for specific directions be dismissed. There will be an order accordingly. I will hear the parties further as to the final orders that should now be made in both actions.
Further, in the context of the defence contention that the material contained in the Marveggio affidavit was not known to it until that document was served, I was referred to authorities dealing with circumstances where, following final judgment, fresh evidence has come to light which has previously been withheld by the successful party.
In Commonwealth Bank of Australia v Quade[2] the appellant bank had failed to fully respond to a discovery order, and documents which ought to have been disclosed only came to light after judgment. The legal question under consideration was the appropriate test to be applied in an application by the unsuccessful party for a new trial.
[2] (1991) 178 CLR 134
The High Court accepted the general principle laid down in Wollongong Corporation v Cowan[3] that:
[a] verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.
It considered, however, that that principle was subject to exceptional circumstances:
Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.
The position is, however, different in a case such as the present where the unavailability of the evidence at the trial resulted from a significant failure by the successful party to comply with an order for the discovery of relevant documents in his possession or under his control. The application to that category of case of the general rule that a new trial should only be ordered on the ground of fresh evidence if it is "almost certain" or "reasonably clear" that the opposite result would have been produced if the evidence had been available at the first trial would, particularly where the failure was deliberate or remains unexplained, serve neither the demands of justice in the individual case nor the public interest in the administration of justice generally. In so far as the demands of justice in the individual case are concerned, it would cast upon the innocent party an unfairly onerous burden of demonstrating to virtual certainty what would have happened in the hypothetical situation which would have existed but for the other party's misconduct. In so far as the public interest in the administration of justice generally is concerned, it would be likely to ensure to the successful party the spoils of his own default and thereby encourage, rather than to penalize, failure to comply with pre-trial orders and procedural requirements.
It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court's assessment of what will best serve the interests of justice, "either particularly in relation to the parties or generally in relation to the administration of justice". In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party, any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is "almost certain" or "reasonably clear" that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.
[3] (1955) 93 CLR 435
Whilst the circumstances here differ, in that there is as yet no final judgment, I have considered these principles to be of assistance on the present application. I will return to them in a moment.
Kyren’s first position was then that it ought to have leave to join the remaining members of the partnership because it was not until it received the Marveggio affidavit that it knew of the existence of an undisclosed principal. Secondly, it contended that that disclosure enlivened its entitlement to re-open its case and plead the matters raised in its draft Fifth Amended Defence and Sixth Amended Cross Claim.
The first contention can shortly be dealt with. It appears to me to be settled law that a party to an action may at any time prior to final judgment elect to proceed against an undisclosed principal (Firm of RMKRM v Firm of MRMVL[4]; Marginson v Ian Potter & Co[5]) and irrespective of the time when that party became aware of the representative capacity. Here the defendant, as plaintiff in the cross claim, has sought to make that election but in the context of obtaining leave to re-open its case and file amended pleadings. In the light of my refusal of such leave, I will hear further from the defendant as to whether it now seeks an order for simple joinder. Given Kyren’s intended appeal and its stay application, it might be seen as convenient for the remaining partners to be joined both as plaintiffs and as defendants to the cross claim, but that remains a matter for the defendant to consider.
[4] [1926] AC 761 at 770
[5] (1976) 136 CLR 161 at 169
The second contention requires more detailed consideration. Kyren says that not only did it not know of the evidence of the undisclosed principal until it saw the Marveggio affidavit, but that Wunda by its conduct in resisting Kyren’s application for security for costs in 2008 actively misled it, and indeed the court, as to its true status in the contract and the proceedings.
Both assertions require a careful consideration of events surrounding the defendant’s application for security for costs brought in 2008. For that purpose I have had regard to the reasons of a learned Master delivered on 22 August 2008 for refusing that application and, as well, to documents identified by the parties as relevant to that. They comprise, in particular, an affidavit of Mr Ryan, solicitor, filed on 26 February 2008 (‘the Ryan affidavit’) and a set of written submissions of the plaintiff placed before the Master.
The Ryan affidavit discloses that in October 2007, in the course of examining Wunda’s financial status for the purposes of its intended security claim, Kyren through its solicitors conducted business and corporate searches and discovered that the ABN used on Wunda’s tax invoices actually belonged to the partnership of which Wunda was a member. It searched relevant details concerning the other members of that partnership and, as I apprehend it, discovered those entities were prima facie connected with or controlled by the plaintiff’s sole director and shareholder, Bruno Marveggio.
In a letter to Wunda’s solicitors of 11 October 2007, it noted the results of those searches and observed:
The circumstances are such that Wunda Projects Australia Pty Ltd is in all likelihood impecunious and is pursuing this matter on behalf of the Partnership and/or the beneficiaries.
Wunda’s solicitors did not respond to that allegation but simply sought time to gain instructions.
When it did not reply, Kyren on 26 February 2008 pursued its threatened security application and in support of it filed the Ryan affidavit exhibiting the relevant searches and correspondence. Mr Ryan asserted, inter alia:
10. The fact that the Partnership rendered tax invoices to Kyren is peculiar considering the Contract refers to the Plaintiff solely and given that proceedings against Kyren are brought solely by Wunda Projects.
…
25. Wunda Projects is in all likelihood impecunious and is pursing this matter on behalf of the Partnership and/or the beneficiaries.
Wunda filed no answering affidavit but in an outline of submissions prior to the Master’s hearing said two things that were the focus of submission by the parties:
(1)that the assertions as to the corporate details and financial position of the individual partner WPA Nominees Pty Ltd were ‘entirely irrelevant’ [7.6] to the application; and
(2)‘The assertion that Wunda is pursing the matter on behalf of a partnership and also for beneficiaries is also speculative’ [7.8].
In the course of argument before the learned Master, Wunda’s counsel made further submissions, reflected in the Master’s reasons at [40], [45] and [46]:
40Mr O’Sullivan analysed the affidavit of Mr Ryan. Notwithstanding the matters raised by the defendant as to the entity of the plaintiff, Mr O’Sullivan said, the tax invoices issued and served on the defendant were in the name of the plaintiff, the contract was with that entity, and it was the claiming party. There was no suggestion that the contract was with someone else.
…
45He said the references to WPA Nominees Pty Ltd were entirely irrelevant.
46He said that the assertion about the plaintiff’s impecuniosity was speculative as was the contention that it was pursuing the matter on behalf of the partnership and for beneficiaries.

The learned Master ultimately refused Kyren’s security application on 22 August 2008, noting that it had failed to discharge the onus of proof it then faced. He referred to John Irving as liquidator of Mawson KLM Holdings P/L (in liq) & Anor v Starmaker (No 51) P/L (No 2)[6] but found, at [79], that the defendant had:
… not established credible evidence that the plaintiff will be unable to satisfy any order for costs in favour of it, so the jurisdiction is not enlivened, and it is inappropriate for an order to be made.
He further observed:
76 I am not persuaded that the entities revealed in the ABN search of the tax invoices rendered by the plaintiff establish that the plaintiff is bringing the action in a representative capacity. The tax invoices were issued in the name of the plaintiff, the contract was with it, and it is the claiming party in this action.
…
78 I do not see any real relevance of the company WPA Nominees Pty Ltd.
[6] [2005] SASC 310
The following observations are pertinent as to those findings, the hearing and the documentation which preceded it:
(1)In the first place, I keep in mind that the defendant, as the applicant, bore the onus of proving the factual matters it relied upon in pursuing the application.
(2)I do not regard Irving v Starmaker (supra) as having obliged the plaintiff in the circumstances it faced to put before the court its full financial details. In that case Layton J had observed at [45]:
Many authorities support the proposition that it is incumbent upon a plaintiff who wishes to resist an application for security to put before a court a full and frank statement of assets and liabilities, not only of the plaintiff but also of shareholders. The absence of such material does not mean that a court should necessarily conclude that a particular litigant may not have sufficient resources to meet an order for security for costs. It is a relevant circumstance for a court to take into account, particularly if there is some doubt about the ability of a party being able to fulfil any obligations for costs if unsuccessful.
That obligation, as plaintiff’s counsel correctly contended, only arose in circumstances whereby a plaintiff was asserting either that it was impecunious and that security would deprive it of the chance for a remedy or that its impecuniosity was a result of the defendant’s own actions.
I am not persuaded there is otherwise a general obligation of disclosure falling upon a plaintiff: the onus of proof always remains with the defendant and it appears to me that the court in Irving v Starmaker was speaking merely of an evidentiary onus arising in the circumstances I have described.
Otherwise, and indeed before the learned Master, Wunda was, as I find it, entitled to sit back and oblige the defendant to prove its asserted entitlement.
(3)It is clear that as of October 2007 the defendant was on notice that the ABN cited on Wunda’s invoices (and, indeed, on the Contractor Information Sheet which formed part of the contract itself) attached to a partnership of which Wunda was itself a member. That must reasonably have led Kyren to suspect (as it then submitted) that Wunda had contracted and was suing in a representative capacity. I thus find its present claim that it has heretofore had no knowledge of such matters to be somewhat overstated.
(4)At no time did Wunda formally deny Kyren’s assertion as to an undisclosed principal. It appeared to me to simply leave Kyren to prove it, albeit that it adopted a somewhat literal, indeed glib, attitude in responding to the claim.
It was literally true to say that Wunda was the contracting party, the billing party and the plaintiff and that the contract itself was not with another party. It was also correct to say that the financial status of WPA Nominees Pty Ltd was irrelevant to the application, as it then stood.
As to the submission that Kyren’s assertion that Wunda was suing in a representative capacity was ‘speculative’, I am not persuaded it reflected any more than the bland stance that Kyren faced the onus of proving its assertion, but I should say I have some reservations about Wunda’s reported assertion ‘there is no suggestion that the contract is with someone else’. Plainly, the defendant was suggesting just that and such a response, if made in those terms, was potentially mischievous. I am mindful, however, that that is the learned Master’s summary of Wunda’s submissions and just what that comment means is in any event not particularly clear.
(5)Notwithstanding the material disclosed by those searches and the bland position taken by Wunda, Kyren did not appear to press the matter further and the learned Master later found against the application. It is, however, important to note that whilst he was not persuaded as to the existence of an undisclosed principal, his dismissal of the claim did not rest upon that issue but upon Kyren’s failure to prove that there was reason to believe Wunda itself would be unable to meet an adverse costs order.
(6)The evidence and argument at that hearing was, of course, confined to Kyren’s application for security but on the face of what appeared in the documentation before it, it seems to me that between October 2007 and August 2008 Kyren remained on notice of a likely undisclosed principal, as its correspondence and submissions plainly asserted, and it remained at liberty then to seek to amend its pleadings to raise the issue, to join the other partners in the action and to force discovery of documents relating to their interrelationships. It chose not to pursue that course.
It is further apparent that, as and from that time and up until the close of evidence at trial on 22 June 2009, Kyren remained on notice of those matters and was at liberty to:
·     conduct further enquiries about them;
·     apply to join the other partners in the action;
·     force consequential disclosure of the documentation now disclosed in connection with the Marveggio affidavit;
·     search and ascertain whether the partnership, as the issuer of tax invoices, was licensed under the Building Work Contractors Act 1995 and to seek to amend its pleadings to raise the contractual argument it now seeks to rely upon;
·     search and ascertain material relevant to Wunda’s registration as a supplier for GST purposes.
Even without formal amendment, in the face of the conflict between Wunda’s letterhead and the partnership ABN contained within it, Kyren might properly have cross-examined plaintiff witnesses at trial about the matter. That did not occur nor was any issue raised in argument, as it might have been on the pleadings as they stood, as to Wunda’s entitlement to use the partnership ABN on its tax invoices. The contention now advanced that they were not tax invoices within the meaning of the GST legislation was always available, but not pursued.
The Marveggio affidavit making these formal disclosures was filed in response to Kyren’s argument about Wunda’s entitlement to recover GST. As I see it, that affidavit did no more than formally confirm what Kyren had asserted in November 2007 was the likely position. That disclosure cannot be said to have caught Kyren by surprise.
It is, however, in reliance upon it that Kyren now seeks to join the remaining partners in the action and re-open its case to plead the two matters I have discussed. It does not seek an immediate determination of them but intimates that, if granted that liberty, the additional evidence to be led would be limited and would not likely require an extended hearing time. The plaintiff disputes the latter contention.
I remind myself that the exercise of my power to re-open the case must be exercised with considerable caution and against considerations of the need for finality in litigation and how best the interests of justice might be served. I also consider it relevant in the present context to consider Kyren’s claim that until the disclosures in the Marveggio affidavit, Wunda had conducted itself in the litigation in such a way as to deprive it (Kyren) of information of particular relevance to its defence and cross claim. If I were satisfied as to that, I would then, in considering its application, have regard to the matters discussed in Commonwealth Bank v Quade (supra), namely, general considerations relating to the administration of justice, Wunda’s degree of culpability in the matter, any lack of diligence by Kyren and the extent of any likelihood that the result of the trial would have been different if Wunda had provided that information before trial. As to the latter question and if other considerations favoured Kyren, I would then be minded to allow a re-opening if there was at least a real possibility that the outcome of the trial would have been different had the relevant disclosures been made beforehand.
In the first place, I should say that I am not persuaded that Wunda acted in such a way as to deprive Kyren of relevant information. It was entitled to contract and sue in its own name as agent of an undisclosed principal and, given that liberty, I am not persuaded it fell under any obligation to make discovery of documents relevant to its representative capacity.
I have otherwise discussed Wunda’s conduct in and about Kyren’s application for security for costs. It was, of course, entitled to leave the defendant to discharge the onus it faced and, whilst I have a reservation about one of its responses to the defendant’s allegations as to an undisclosed principal and whilst the position it took might have served to deflect Kyren’s interest in that question, it ought not have. Its stance did not deprive Kyren of the opportunity to pursue the enquiries and applications it has only now made and to raise the issue in these proceedings. Wunda ought not be held accountable for Kyren’s default and delay which is really attributable to its own lack of interest or diligence in the matter.
It is otherwise neither necessary nor appropriate that I rule upon the further grounds of defence sought to be raised by the defendant, other than to say that, on what was put before me, prima facie neither appears to me to raise a real possibility that, had they been pleaded and proved, the outcome of the trial would have been different.
As to the proposed plea that Wunda’s claim ought be dismissed as the undisclosed principal was not licensed under the Building Work Contractors Act 1995, no authority was advanced for that proposition and it is not immediately apparent that a licensed builder acting as agent for itself and others may not sue and recover contractual building costs.
As to the proposed plea that Wunda was by virtue of its status unable to issue a tax invoice within the meaning of the GST legislation, it is enough to say that my findings as to the agreement for payment on presentation of a tax invoice focussed upon documents that the parties themselves treated and agreed upon as constituting tax invoices, whether or not the particular documents were ‘tax invoices’ within the meaning of the GST legislation.
It appears to me that the defendant wishes now to resile from a forensic decision made in or after 2007 not to seek to join the other partnership members in the litigation and to raise consequential matters by way of special defence notwithstanding its belief about the plaintiff’s claim being a representative one nor the information and documentation it then had in its possession or otherwise had access to.
I consider it ought be bound by that decision. Its present applications offend all case-flow management principles. I am not persuaded the circumstances here are exceptional and I consider that the proper administration of justice requires that there be an end to this litigation.
The defendant’s application to re-open its case to raise the matters foreshadowed in its draft Fifth Amended Defence and Sixth Amended Cross Claim is refused.
In consequence, the defendant’s application in paragraphs 2, 3 and 5 to 8 inclusive of its interlocutory application filed on 27 August 2010 and in paragraph 3 of its application of 16 November 2010 are dismissed. I will hear further from it as to its application in paragraph 2 of that second application.
There will then be final judgment for the plaintiff on the claim in the amount of $629,934.40 and the cross claim is dismissed. I have already made general costs orders but there remains the question of costs on the defendant’s interlocutory applications filed on 27 August and 16 November 2010.
I will hear submissions as to that, as to joinder and as to the defendant’s stay application.