AUSTRALIAN HARDBOARDS LIMITED v HUDSON INVESTMENT GROUP LIMITED

AUSTRALIAN HARDBOARDS LIMITED v HUDSON INVESTMENT GROUP LIMITED - [2007] NSWCA 104 - NSWCA 2007 case summary — Zoe

[6]

A R Marr Pty Ltd v Chaplin (1986) 66 ACTR 31 Abigroup Limited v Abignano (1992) 39 FCR 74 Australian Hardboards Limited and Others v Hudson Investment Group Limited [2006] NSWCA 146 Baldry v Jackson [1976] 2 NSWLR 415 Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465 Bonnici & Anor v Ku-ring-gai Municipal Council [2001] NSWSC 1124 Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 Comcare Australia v Grimes and another (1994) 121 ALR 485 Cowan v Cavanagh [1978] VR 665 Cristel v Cristel [1951] 2 KB 725 Dillon v Macdonald (1902) 21 NZLR 375 Dowdle v Hillier (1949) 66 WN (NSW) 155 Fell v NSW Oil & Shale Co (1889) 10 LR (NSW) Eq 255 Ford-Hunt v Raghbir Singh [1973] 1 WLR 738 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 Greene v West Cheshire Railway Co (1871) LR 13 Eq 44 Guest v Beecroft (1957) 10 DLR (2d) 657 Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22 Hudson Investment Group Limited v Australian Hardboards Limited & Ors [2005] NSWSC 716 Hudson Investment Group Limited v Australian Hardboards Limited & Ors [2005] NSWSC 931 Hudson Investment Group v Australian Hardboards Ltd; Australian Hardboards Ltd v Hudson Investment Group Ltd [2006] NSWSC 840 Hughes v Pellicciari (1982) 2 BPR 9509 Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 CASES CITED: J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282 JAG Investment Pty Ltd v Strati [1981] 2 NSWLR 600 Jago v District Court of New South Wales (1989) 168 CLR 23 King v Lintrose Nominees Pty Ltd (2001) 4 VR 619 Kraft v Kupferwasser (1991) 23 NSWLR 236 Ku-Ring-Gai Municipal Council v Bonnici [2002] NSWCA 313 Kyabram Property Investments Pty Ltd v Murray [2006] NSWSC 54 Leaway Pty Ltd v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757 Melliday v McMahon (1901) 1 SR (NSW) (Eq) 6 Muriti v Prendergast [2005] NSWSC 281 Neylon v Dickens [1987] 1 NZLR 402 Nicholson v Nicholson [1974] 2 NSWLR 59 Northern Counties Securities Ltd v Jackson & Steeple Ltd [1974] 1 WLR 1133 Pakenham Upper Fruit Co Ltd v Crosby (1924) 35 CLR 386 Permewan Wright Consolidated Pty Ltd v Attorney General (1978) 35 NSWLR 365 Phillips v Walsh (1990) 20 NSWLR 206 Poisson and Woods v Robertson and Turvey (1902) 50 WR 260 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Riltang P/L v L P/L [2004] NSWSC 977 Rosser v Maritime Services Board of New South Wales (1996) 14 Building and Construction Law 375 In re Scowby [1897] 1 Ch 741 Singh (Sudagar) v Nazeer [1979] Ch 474 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 Turner v Bladin (1951) 82 CLR 463 Wentworth v Woollahra Municipal Council (NSWCA, 31 March 1983, unreported) Wolverhampton and Walsall Railway Company v London and North-Western Railway Company (1873) LR 16 Eq 433

[19]

The Entitlement Deed 7 To understand the submissions of the parties, it is necessary to know about the transaction that was the subject of the dispute, and where the litigation concerning the dispute had reached by the time of Gzell J's decision. 8 The Claimant had, prior to June 2001, been a wholly-owned subsidiary of the Opponent. The Claimant operated a wood-processing factory at Ipswich, Queensland. The factory produced large quantities of waste water. Associated with the factory was a significant area of land, onto which that waste water was discharged. In November 2000 Heads of Agreement were entered between the Claimant, the Opponent, and a property developer called Wingate, under which there was to be a joint venture for the development of the land. 9 On 8 June 2001, a proposal was well advanced for the Opponent to sell all its shares in the Claimant. On the same day, a document called the Entitlement Deed was entered between the Claimant and the Opponent. Its commercial purpose was that, notwithstanding the sale, the Opponent could in some circumstances continue to derive a benefit from the joint venture. 10 Three provisions of the Entitlement Deed matter for present purposes. One of them was that, if a particular type of dealing with the land, defined in the deed as a Disposal, occurred on or before the Sunset Date, the Claimant was obliged to pay to the Opponent the lesser of (a) $10 million minus the deposit, and (b) the value of the total consideration received by the Claimant concerning the Disposal minus the deposit. A Disposal occurred "if the ultimate control over, or ultimate beneficial ownership in, the Land changes in any way". The Deed did not say what counted as a change in " the ultimate control over, or ultimate beneficial ownership in, the Land". The Sunset Date was defined as a date five years after the entry of the Entitlement Deed, ie 8 June 2006. 11 The second relevant provision required the Claimant to give the Opponent a mortgage, presumably to secure payment of the amount the Claimant would be obliged to pay if a Disposal occurred before the Sunset Date. 12 The third relevant provision required the Claimant to pay to the Opponent a deposit of $3,500,000.00 on the signing of the deed, and required the Opponent to invest that deposit in an interest-bearing account with the ANZ Bank. The Opponent was entitled to keep the deposit and accrued interest, except if (relevantly for present purposes) a Disposal did not occur prior to the Sunset Date and the Claimant had complied with an obligation to use its best endeavors to develop and Dispose of the land before the Sunset Date on the best possible commercial terms. In that latter event, the Claimant was entitled to receive the deposit back, together with accrued interest. 13 Two deeds of amendment were purportedly executed by the Claimant and the Opponent, on 20 June 2001 and 5 September 2001. Each of them purported to vary the Entitlement Deed in a way that was favourable to the Claimant. One of them purported to remove the need for the mortgage to be given. The other purported to reduce the amount that was payable to the Opponent if there was a Disposal before the Sunset Date. 14 At the time, a Mr McLeod and a Mr Holland were each directors of both the Claimant and the Opponent. Both of the deeds of amendment were executed under seal by each of the Claimant and the Opponent, with the affixing of the seal witnessed by Mr McLeod on behalf of the Opponent, and by Mr Holland on behalf of the Claimant.

[20]

The Commercial List Proceedings 15 The Commercial List proceedings were brought by the Opponent, and named as defendants, relevantly for present purposes, the Claimant, Mr McLeod and Mr Holland. They sought declarations that Mr McLeod did not have authority to execute either of the deeds of amendment on behalf of the Opponent; orders declaring void or setting aside both deeds of amendment; declarations that in entering into the deeds of amendment both Mr McLeod and Mr Holland had contravened their duties as directors of the Opponent; and financial compensation from Mr McLeod and Mr Holland. They also sought "orders that the Entitlement Deed be specifically performed". There were some other parties, and some other claims, but they do not matter for present purposes. 16 The Claimant filed a cross claim in the Commercial List proceedings, seeking rectification of the Entitlement Deed. 17 The hearing of the Commercial List proceedings started on 4 July 2005, and concluded on 14 July 2005. 18 Einstein J delivered judgment in the Commercial List proceedings on 12 August 2005: Hudson Investment Group Limited v Australian Hardboards Limited & Ors [2005] NSWSC 716. 19 In substance, Einstein J decided, so far as presently relevant, that the two amendment deeds were void, that the Entitlement Deed had not come to an end through abandonment, that specific performance of the Entitlement Deed should be ordered, and that the rectification cross claim failed. 20 There was a dispute about the appropriate orders the court should make to give effect to his Honour's reasons for judgment. One of those disputes concerned the appropriateness of making an order for specific performance of the Entitlement Deed. Einstein J delivered a separate judgment relating to orders and costs: Hudson Investment Group Limited v Australian Hardboards Limited & Ors [2005] NSWSC 931. His Honour found, at [14]-[16] of that judgment, that the making of a specific performance order was appropriate. 21 The orders Einstein J eventually made include the following: "7. Order that the Entitlement Deed dated 8 June 2001 between the Plaintiff and the First Defendant be specifically performed by the First Defendant. 11. Order that the First Defendant forthwith to the extent not yet paid, pay to the Plaintiff the $3,500,000 deposit in accordance with the Entitlement Deed. 12. Reserve liability to apply to an Associate Justice for the purpose of dealing with a matter involved in or arising in the course of working out the order. 13. Order reserving to an Associate Justice for further consideration further orders to give effect to the above orders for specific performance." 22 The Claimant appealed to the Court of Appeal against the orders of Einstein J. That appeal was dismissed on 6 June 2006, apart from a minor variation of an order that had been made against a party who is not involved in the present proceedings: Australian Hardboards Limited and Others v Hudson Investment Group Limited [2006] NSWCA 146. The principal judgment was given by Santow JA, with whom Giles and Bryson JJA agreed. Santow JA described the focus of the appeal at [2]: "This appeal, while again seeking rectification of a deed ("the Entitlement Deed"), concentrates on a challenge to the trial judge's conclusion that a deed purporting to amend the Entitlement Deed was never validly executed by the two companies concerned. Invalidity was held to follow from the absence of board authority to execute the deed and breach by the directors of their fiduciary duties in attempting to cause their respective companies to enter into the deed. The directors were on notice of any lack of authority as they were common to both companies who were parties to the deed." 23 As well, there was an issue in the Court of Appeal concerning the appropriateness of some of the orders that Einstein J had made. Relevantly for present purposes, Santow JA said, at [129]: "It was contended by the appellants that the order to pay the deposit should not have been made. It was argued that there was no issue at trial or any finding by the trial judge as to the deposit. There was an issue, in that the respondent claimed specific performance and if there was good reason for the deposit not to be paid it was incumbent on the appellants to raise the issue. I presently see no practical difficulty in compliance with the order made. If it be the case that the deposit has been paid, then there is nothing further to do. If the deposit has not been paid then it must be paid."

[21]

The Rival Proceedings 24 Although it had apparently not been a matter of contention at the hearing before Einstein J, it seems that there is now a dispute about whether the deposit that was payable under the Entitlement Deed was ever paid. In saying that, I make clear there has not been full debate before us concerning what was, and what was not, in issue in the proceedings before Einstein J. In particular, for reasons that will hereafter appear, these reasons for judgment ought not result in any issue estoppel, or any Anshun estoppel, concerning what was or was not in issue before Einstein J. 25 Insofar as one can glean it from correspondence between the solicitors, it is not as though the Opponent is alleging that nothing at all was done about payment of the deposit. Rather, the Opponent's contention seems to be that a journal entry was made in the books of the Opponent on 30 June 2001, recognising a payment of the deposit in the sum of $3.5 million, but that another journal entry was made in the books of the Opponent on 31 May 2002, and "the effect of the later journal entry appears to have nullified or reversed the payment of $3.5 million from [the Claimant]". 26 On 19 July 2006 - ie a little over a month after the Sunset Date had passed - the Opponent filed a notice of motion in the Commercial List proceedings, seeking, so far as is presently relevant, the following orders: "2. An order that the First Defendant pay the Plaintiff the sum of $10,000,000. 3. In the alternative to Order 2, an order that the First Defendant pay the Plaintiff the sum of $3,500,000. 4. An order that the First Defendant pay the Plaintiff a sum calculated as the amount of interest compounding on a principal sum of $3,500,000 at the rate of interest on an interest bearing account at Australia and New Zealand Banking Group Limited for the period from 8 June 2001 to 4 August 2005 or to 16 May 2003. 5. An order that the First Defendant pay the Plaintiff interest pursuant to section 100 of the Civil Procedure Act 2005 ." 27 That notice of motion was, according to the Opponent, setting in motion the liberty to apply and/or the reservation of further consideration that the orders of Einstein J had provided for, concerning the order for specific performance. According to the Opponent, the order that the Claimant pay $10 million was justified because there had been a Disposal of the land, that Disposal had triggered an obligation to pay the amount of $10 million under the Entitlement Deed, and the deposit of $3.5 million had not been paid. The alternative order, that the Opponent pay $3.5 million, was justified because, even if there had not been a Disposal of the land, the deposit had still not been paid. The order for payment of interest on $3.5 million from 8 June 2001 to 4 August 2005 or 16 May 2003 was said to be justified because, since the deposit had not been paid, it had not earned interest from the ANZ Bank, and the Opponent was entitled to that interest, as well as the $3.5 million principal of the deposit. 28 The Claimant filed the summons in the Equity proceedings the next day, on 20 July 2006. The only defendant to that summons was the Opponent. The orders the summons sought were: "1. A declaration that on a proper construction of an Entitlement Deed between the plaintiff and the defendant dated 8 June 2001 ( Entitlement Deed ) the ultimate control over, or ultimate beneficial ownership in, the Land (as defined in the Entitlement Deed) did not change in the period 8 June 2001 to 8 June 2006 within the meaning of clause 4 of the Entitlement Deed. 2. A declaration that on a proper construction of the Entitlement Deed, no moneys are due by the plaintiff to the defendant under the clause 4 of the Entitlement Deed. 3. An order that the defendant pay $3,500,000 to the plaintiff pursuant to clause 2(d)(ii) of the Entitlement Deed. 4. An order that the defendant execute and deliver to the plaintiff a withdrawal of its caveat no 708994321 dated 21 September 2005 over the Land. 5. Costs." 29 The justification, according to the Claimant, for those orders was that there had not been any Disposal of the land prior to the Sunset Date, that the Claimant had complied with its obligations to use its best endeavours to develop and Dispose of the land before the Sunset Date on the best possible commercial terms, that the Claimant had paid the deposit, and hence that on the Sunset Date the Claimant had become entitled to be repaid the deposit. 30 The existence of these two rival sets of proceedings led to the filing of the two Notices of Motion for stay that are the subject of this appeal.

[35]

Gzell J's Reasons for Judgment 34 His Honour recognised that multiplicity of proceedings in relation to similar issues should be avoided, and correctly stated the applicable principles, as follows: "6 In McHenry v Lewis (1882) 22 Ch 397 at 400, Jessel MR said that where two actions by the same man were brought in courts governed by the same procedure, and where judgments are followed by the same remedies, it was prima facie vexatious to bring two actions where one would do. In Williams v Hunt [1905] 1 KB 512 at 514, Collins MR said that where two separate remedies were possible and a start was made to put in force one of the remedies, it was an abuse of process of the Court to divide the remedy where there was a complete remedy in the Court in which the suit was first started. 7 In Reynolds v Reynolds [1977] 2 NSWLR 295 at 306, Waddell J cited both decisions and concluded that the existence of two proceedings was considered prima facie vexatious and one would, generally as of course, be stayed. His Honour said: "The general principle in relation to proceedings in two courts in the one country is stated by the Court of Appeal in McHenry v Lewis and in relation to proceedings in each of two divisions of the one court in Williams v Hunt again a decision of the Court of Appeal. In such cases the existence of two proceedings is considered prima facie vexatious, and the court will generally, as of course, put the plaintiff to his election, and stay one of the proceedings; or it may, as in the latter case, stay the proceedings which it considers to be inappropriate." 8 Beach J put it this way in Burbank Australia Pty Ltd v Luzinat [2000] VSC 128 at [28] - [30]: "Where a party to a proceeding institutes a second proceeding in a different form in relation to the same subject matter as the first proceeding, prima facie the second proceeding is vexatious and will be stayed: see McHenry v Lewis and Williams v Hunt . In such a situation the courts have for many years taken the view that a litigant already deeply involved in one piece of litigation would be unduly harassed if a second piece of litigation was to proceed at the same time as the first. And such a principle applies to proceedings whether they be before a court, a board or a tribunal. All the more so where there is a significant risk, as there is in the present case, that VCAT's findings and the Board's findings may be in conflict one with the other."" 35 His Honour also recognised that sometimes, after a final order has been made, an application can be made to deal with matters arising in the course of working out the order by making more specific provision for its implementation or by modifying its operation to take account of subsequent changes of circumstances. He quoted from the judgment of McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 209-210: "The question whether any particular application can properly be made in existing proceedings is a matter to be determined according to general law principles as modified by any relevant statutory provision. One such principle of the general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived: see generally Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145; and FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. There are a number of exceptions and qualifications to this principle but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order: see generally Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22; 10 WN (NSW) 146; Poisson & Woods v Robertson & Turvey (1902) 86 LT 302; 50 WR 260; 46 Sol Jo 196; Dowdle v Hillier (1949) 66 WN (NSW) 155; Re Porteous [1949] VLR 383; [1950] ALR 89; Cristel v Cristel [1951] 2 KB 725 and Re Scott (1964) 82 WN (Pt 1) (NSW) 313; [1964-5] NSWR 1636. In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order; but the absence of an express reservation of liberty to apply does not preclude such an application: see Penrice v Williams (1883) 23 Ch D 353; Light v William West & Sons Ltd [1926] 2 KB 238; Chandless-Chandless v Nicholson [1942] 2 KB 321; Re Porteous (at 385; 91)." (my italics) 36 Gzell J made a finding of fact at [25], which is not challenged in this appeal, that: "Prior to the proceedings before Einstein J, there had been a number of disposals of the land but, in total, they did not exceed $3.5 million and cl 4 of the Entitlement Deed was not activated." 37 Gzell J noted, at [27], a submission by the Opponent that: "… the matters raised by [the Claimant] could all be raised in opposition to [the Opponent's] notice of motion in the Commercial List proceedings with the exception of [a topic not of present relevance]." 38 In His Honour's view, the fact that that some of the rights that the Claimant wished to assert had only accrued to it when the Sunset Date had passed was not a bar to them being asserted in the Commercial List proceedings. He noted that Phillips had recognised that the operation of a final order could be modified, in the exercise of liberty to apply, "to take account of some subsequent change of circumstance." 39 The Claimant had submitted that the Commercial List notice of motion sought to raise new matters that were not before Einstein J, concerning whether the deposit had been paid, and that, as White J had held in Muriti v Prendergast [2005] NSWSC 281 at [158]: "The jurisdiction under a reservation of further consideration, or the grant of liberty to apply, to make additional orders by way of working out a final order to make more specific provision for its implementation, or by modifying its operation to take account of a subsequent change of circumstances, or by enforcing it, does not extend to an application for substantive relief substantially different from that given in the order. ( Phillips v Walsh (1990) 20 NSWLR 206 at 210.)" 40 Concerning that submission, Gzell J held, at [32]: "Far from an inquiry as to whether or not the deposit has been paid and in what amount raising a new issue, it constitutes the logical working out of an order to pay the deposit to the extent not yet paid." 41 Gzell J held, correctly, that any question there might be about availability of discovery or inspection of documents were not a bar to the continuance of the Commercial List proceedings. Any Associate Justice has power to give such procedural directions as are necessary for the case management of any issues arising in proceedings before him or her. In particular, if discovery or interrogatories are appropriate to decide a dispute before an Associate Justice, the Associate Justice can give directions for them. 42 He also held, at [34]: "The major issue that Australian Hardboards wishes to agitate is as to the content of the order for specific performance by reason of the termination of the Entitlement Deed on the sunset date. But those matters can, in my view, readily be argued in opposition to the orders sought by Hudson in working out the specific performance order and the qualified order for payment of the deposit." 43 His conclusion was as follows: "36 For the above reasons I am of the view that the orders sought by Hudson in its notice of motion in the Commercial List proceedings are appropriate to the working out of the order for specific performance and the qualified order for the payment of the deposit. I do not think it appropriate, however, to seek a further order that Australian Hardboards pay Hudson $3.5 million. The appropriate way to work out the order that Australian Hardboards forthwith, to the extent not yet paid, pay to Hudson the $3.5 million deposit is for the Associate Justice to inquire whether or not the deposit has been paid and if paid, to what extent. 37 I am also of the view that the matters raised by Australian Hardboards in its proceedings in the Equity Division may be accommodated in answer to Hudson's notice of motion in the Commercial List proceedings and the order for removal of the caveat is sufficiently connected with the original proceedings before Einstein J to make it appropriate that it be raised before the Associate Justice hearing Hudson's notice of motion. 38 It follows, in my view, that the appropriate proceedings to go forward are those brought by Hudson in the Commercial List proceedings and multiplicity of proceedings is to be resolved by an order staying the summons in the Equity Division proceedings."

[36]

Events Since the Judgment of Gzell J 44 On the hearing of this application the Court was provided with evidence of procedural steps that have been taken concerning the Commercial List proceedings since the judgment of Gzell J. Mr Wood, counsel for the Opponent, accepts that that material can properly be looked at in connection with deciding whether to grant leave to appeal. He also accepts that, if the court were to be of the view that there had been appellable error in the judgment of Gzell J, that material can properly be looked at for the purpose of this court exercising its own discretion. He submits, however, that that material cannot be relied upon for the purpose of deciding whether there has been any appellable error in the judgment of Gzell J. That submission is correct in principle. 45 On 1 September 2006 there was a directions hearing before Einstein J in the Commercial List proceedings. The Opponent filed an amended notice of motion in the Commercial List proceedings, seeking the following orders: "2. An order that the First Defendant pay the Plaintiff the sum of $6,500,000. 3. In the alternative to Order 2, an order that the First Defendant pay the Plaintiff the value of the aggregate consideration received by the First defendant in relation to the Disposal (as defined in the Entitlement Deed) less the sum of $3,500,000. 4. An order that, for the purposes of Order 11 made by Justice Einstein on 13 September 2005, there be an inquiry into and a determination of whether the Deposit (as defined in the Entitlement Deed), or any part of the Deposit, was paid by the First Defendant to the Plaintiff in accordance wit the Entitlement Deed. 5. An order that the First Defendant pay the Plaintiff a sum calculated as the amount of interest compounding on a principal sum of $3,500,000 at the rate of interest on an interest bearing account at Australia and New Zealand Banking Group Limited for the period from 8 June 2001 to 4 August 2005 or to 16 May 2003. 6. An order that the First Defendant pay the Plaintiff interest pursuant to section 100 of the Civil Procedure Act 2005 ." 46 Counsel for the Opponent submitted to Einstein J at that directions hearing that it would not be appropriate for the Claimant to bring any cross-claim in those proceedings. Letters between the solicitors soon after made it clear that the Opponent's stance was that it would not be procedurally possible for the Claimant to bring any cross-claim seeking recovery of the deposit. That was on two bases - that it was outside the scope of the working out of the orders for specific performance that had already been made, and that it would be in substance a negativing of the orders of Gzell J staying the Equity Division proceedings. 47 The Opponent filed points of claim in the Commercial List proceedings on 6 October 2006. Those points of claim alleged that the Claimant had not paid the deposit, that the Opponent has not received the interest to which it would have been entitled if the deposit had been paid in the manner required by the Entitlement Deed, and that there have been Disposals of the land prior to the Sunset Date, so that the Claimant is entitled to $9.5 million minus the deposit. The transactions alleged to be such Disposals are a transfer of land in April or May 2003 for $2 million, and a transfer on 4 August 2005 for $7.5 million. In other words, the Opponent's allegation is that the Disposal of land that took the proceeds of Disposal over $3.5 million occurred in the period after the hearing before Einstein J had concluded, though before His Honour delivered judgment. 48 On 28 November 2006, the Claimant served points of defence and cross-claim in the Commercial List proceedings. No existing procedural direction in the Commercial List in proceedings made provision for the filing of a cross-claim. The cross-claim that the Claimant wishes to bring seeks the return of the deposit. At present, pending the result of this appeal, Einstein J has not permitted that cross-claim to be brought.

[38]

" Working Out the Order " 50 When final relief has been granted in a suit, an order granting liberty to apply enables further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced or, as it is sometimes called, "working out the order": Poisson and Woods v Robertson and Turvey (1902) 50 WR 260 at 261; Cristel v Cristel [1951] 2 KB 725 at 729, 730; Nicholson v Nicholson [1974] 2 NSWLR 59 at 63; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [97]. The manner of invoking liberty to apply is by a substantive motion on notice: Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 at 559; Kraft v Kupferwasser (1991) 23 NSWLR 236 at 244. 51 In Abigroup Limited v Abignano (1992) 39 FCR 74 at 88 the Full Federal Court (Lockhart, Morling and Gummow JJ) held that an order that a particular sum of money be paid to a particular party was a final order, notwithstanding that the order also reserved liberty to apply. Their Honours gave a general indication of where and how reservation of liberty to apply operates: "The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made. They relate essentially to orders (not often to declarations) in practice in our experience. We agree with the submission of counsel for the appellant that orders of this kind relate to enforcement and not to statements of the rights of the parties. Historically orders reserving liberty to apply are for limited purposes. They arise, for example, upon a decree for specific performance where the unsuccessful defendant declines to sign all documents and do whatever is necessary to ensure that the contract the subject of the suit is performed. The reservation of liberty to apply ensures that the court may then make orders to secure that the relevant contract is enforced by the defendant by, for example, appointing the appropriate officer of the court to execute the necessary documents of conveyance so as to give title to the successful plaintiff. Historically the reservation by the Court of Chancery of further consideration of a decree was intended to cover the circumstance where following the pronouncement of the decree (a final decree) a further hearing was necessary for the court to deal with some outstanding issue sometimes requiring taking further evidence and making further declarations or orders. But this did not detract from the initial orders as being final orders. Rather it was a mechanism designed by the Court of Chancery to obviate the necessity of a further suit being instituted to deal with matters that were essentialy consequential upon the making of the initial final decree. This demonstrates that there is no inconsistency between the making of final decrees, judgments or orders or declarations and subsequent orders of the court. It all depends upon the circumstances of the case and the particular orders or decrees formulated by the court. See generally the discussion with respect to liberty to apply and further consideration in A V Ritchies Supreme Court Procedure (NSW) , paras 42.12.2 and 42.12.3." 52 Liberty to apply cannot be used to alter the substance of an order already made: Dowdle v Hillier (1949) 66 WN (NSW) 155 at 156; Cristel v Cristel [1951] 2 KB 725; Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 at 559. 53 Some aspects of the width of the court's jurisdiction to superintend the enforcement or working out of an order for specific performance were listed by White J in Riltang P/L v L P/L [2004] NSWSC 977 at [51]: "It is well established that where a plaintiff obtains an order for specific performance the Court may substitute other forms of relief where a decree of specific performance is not complied with. ( Fry on Specific Performance (6 ed paras 1170-81)). Where the purchaser has gone into possession such substituted relief may include the appointment of a receiver, an injunction to restrain the purchaser from continuing possession of the land, and an order for sale of the land with the vendor to have liberty to bid. Where either plaintiff or defendant wishes to rescind a contract pursuant to a contractual right to do so, or terminate [it] for breach, he must obtain leave, or more appropriately, vacation of the order for specific performance. ( Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 260; JAG Investment Pty Ltd v Strati [1981] 2 NSWLR 600 at 603-604). Whilst not directly in point these cases illustrate the width of the Court's jurisdiction to superintend the enforcement or working out of an order for specific performance." 54 In Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 McPherson SPJ considered what is involved in "working out" an order, at 598: "… a judgment or order that expressly reserves to parties a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. What is meant in this context by "working out" the terms of an order is considered in some of the cases on the point. In Cristel v Cristel [1951] 2 K.B. 727, 728, Somervell LJ said it "involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied". A simple judgment for a money sum requires no "working out" in any sense, so that liberty to apply is quite inappropriate in such a case. On the other hand, there are many orders, particularly on the equity side, as to which the process of carrying the primary judgment into effect may require supervision, with the consequence that further or supplementary orders or directions may be needed to enable it to achieve its purpose. An example commonly encountered in practice is specific performance, where, because the consent or approval of some person or instrumentality may be needed to authorise a preliminary step, the judgment sometimes takes the form only of a declaration that the contract be specifically performed, together with subsidiary orders compelling particular acts to be done. See Egan v Ross (1928) 29 SR (NSW) 382, 388; Hasham v Zenab [1960] AC 316; Brown v Heffer (1967) 116 CLR 344, 350. The primary order may then need to be supplemented by further orders from time to time before the stage is reached at which the defendant can finally be ordered to perform specifically what he contracted to do in the way of transfer or payment as the case may be: Brown v Heffer (1967) 116 CLR 344, 350. In Penrice v Williams (1883) 23 Ch D 353, 356-357, Chitty J spoke of an order that is "clearly not of a final character, and also when there is necessarily something to be done irrespective of what appears on the face of the order". His Lordship was there explaining that in some cases an order may by its very nature need to be supplemented to give full effect to it, in which event liberty to apply is implied and need not be expressly reserved. See also Fritz v Hobson (1880) 14 Ch D 542, 561; Cristel v Cristel [1951] 2 KB 725, 731. A decree of specific performance in the limited form previously described nevertheless is a "final" order for the purpose of appeal and otherwise, and so, at least as to issues litigated, cannot be discharged or varied under liberty to apply, notwithstanding that further decisions and orders may yet have to be made in working out its consequences. What cannot be done under the guise of "working out" an order is to vary it." 55 There are some judicial statements to the effect that what can be done under liberty to apply is quite limited: eg Wentworth v Woollahra Municipal Council (unreported, NSWCA 31 March 1983) at 4, per Hutley JA; Kraft v Kupferwasser (1991) 23 NSWLR 236 at 243. However, those statements are of a degree of generality that is difficult to apply as an aid to deciding any particular case, and, like all generalisations in judgments, need to be read secundum subjectam materiam: Leaway Pty Ltd v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757 at [75]-[82]. In Wentworth the liberty to apply was limited in that it did not enable the court to take the step that common sense called out for, of not permitting an inquiry that had become pointless to go ahead, when that involved reversing one of the court's previous orders in the suit. 56 Rather, what can be done under a reservation of liberty to apply depends on what needs to be done, in the particular case, to work out the particular orders that have been made. If an order is one the working out of which of its nature involves deciding complex questions, or questions that were not specifically raised at the time that the order was made, those questions can be raised and decided in the original suit pursuant to liberty to apply. 57 One example of such a case arises if an order is made for the administration by the court of the trusts of a deceased estate, and for an inquiry before the Master concerning what were the assets of the estate at the death of the testatrix, and in the course of that inquiry facts emerge suggesting that, since the death of the testatrix, some particular asset was declared by its owner to be held on trust for the estate. In such a situation it is proper for the court to direct a further inquiry, in the administration suit, as to whether that asset is held on trust for the estate, even if no allegation that it was held on trust for the estate was made either on the pleadings or before the Master: Melliday v McMahon (1901) 1 SR (NSW) (Eq) 6 at 8. This is, it seems to me, an example of an inquiry that falls within the scope of the general order that had been made for administration of the entire estate (an expression general enough to include administration of any assets that were declared after the death of the testatrix in question to be held on trust for the estate), even though the particular topic of that inquiry was not mentioned in the pleadings. Because it is within the scope of the general order that had been sought, and made, it is legitimate for the question to be inquired into in the administration suit.

[39]

Can Facts Arising Only After the Order Be Taken Into Account? 58 There is no difficulty about exercising a liberty to apply for the purpose of dealing with facts that have arisen only since the original order was made. Mahoney JA, in Wentworth v Woollahra Municipal Council (unreported, NSWCA, 31 March 1983) at 5 expressly so recognised, saying: "In some cases, orders have been made which alter the effect of an existing order because of facts which were not before the court which made the original order. It may be that such a supplemental order can be made because of facts which had occurred before the making of the original order but were not brought to the court's attention: see in Re Scowby; Scowby v Scowby [1897] 1 Ch 741. It has been held that supplemental orders can be made because of facts occurring after the making of the original order: Bailey v Marinoff 125 CLR at p.540, per Gibbs J; see also Ford-Hunt v Raghbir Singh (1973) 1 WLR 738; Northern Counties Securities Ltd v Jackson & Steeple Ltd (1974) 1 WLR 1133 at 1138; cf Easton v Brown (1981) 3 All ER 278 at 284(e). This jurisdiction has been long recognised in the practice books: Seton on Judgments and Orders (1912) p.126, 816; Daniell's Chancery Practice (8th edition) p.710, 1139. See also the Annual Practice (1982), Notes to Order 20, r.11/5; Halsbury's Laws of England 4th Edition, Volume 37, par.329(n). There has been no finally authoritative examination of the nature of the supplemental orders which can be made." 59 One example is that it is possible for an order for specific performance to be discharged by the court, by reason of events occurring after the order was made: JAG Investment Pty Ltd v Strati [1981] 2 NSWLR 600 at 603-604 per Hope JA. Melliday v McMahon (para [57] above) provides another example of the principle that events after the original order can be the subject of an application made on liberty to apply. In accordance with that principle, in a situation where it had been declared that a particular mortgage document ought be rectified to include land other than that stated on its face, and there had been an order for a particular conveyancing procedure to be carried out to enable the mortgagee to obtain rights in accordance with the mortgage as rectified, and it then eventuated that that conveyancing procedure was not able to be carried out, it was held to be within the scope of liberty to apply for the court to order a different means by which the mortgagee can obtain rights in accordance with the mortgage as rectified: Kyabram Property Investments Pty Ltd v Murray [2006] NSWSC 54. In the extracts from Riltang and Fylas quoted at paras [53] and [54] above, the various types of remedy that White J and McPherson SPJ listed as being obtainable under liberty to apply would frequently involve, in a way crucial to the availability of the remedy, proof of facts that had arisen since the making of the original order. 60 Concerning the use of liberty to apply to decide, in a suit for specific performance, questions that had not arisen at the date the decree for specific performance was made, in Turner v Bladin (1951) 82 CLR 463 at 472 Williams, Fullagar and Kitto JJ said: "… proceedings for the specific performance of a contract which is of such a kind that it can be specifically enforced can be commenced as soon as one party threatens to refuse to perform the contract or any part thereof or actually refuses to perform any promise for which the time of performance has arrived. The court can then make a decree that the contract ought to be specifically performed and carried into execution, and can so mould its decree and order such inquiries, accounts and other proceedings under the decree as may be necessary to carry into effect all the promises of both parties whether they are presently performable or are only performable in the future ." (emphasis added) 61 Their Honours continued, at 472-473: "… a vendor whose purchase money is payable by instalments, some of which are not yet payable, can obtain a decree for specific performance and an order for payment of the instalments that are overdue, the plaintiff to have liberty to apply in respect of future instalments as they become payable." 62 The order for specific performance made by the High Court in that case included an order for the payment of a sum of money then due, and (at 476): " … that the plaintiffs be at liberty to apply to the Supreme Court in the event of non-payment of any instalments or interest that will become payable under the agreement in the future."

[40]

Only Summary Applications Under Liberty to Apply? 63 There are also judicial statements to the effect that the only effect of a reservation of liberty to apply is to permit persons having an interest under the decree to apply to the court touching such interest in a summary way without again setting the case down: Dowdle v Hillier (1949) 66 WN (NSW) 155 at 156; Wentworth v Woollahra Municipal Council (unreported, NSWCA, 31 March 1983) at 4, per Hutley JA; Comcare Australia v Grimes and another (1994) 121 ALR 485 at 487. Those statements are all sourced back to Daniell's Chancery Practice, and reflect 19th-century English court procedures - their very language, of "decree" and "setting the case down", shows their connection to a very specific set of procedural rules. 64 Under the present procedures of the Court, there is no need for applications under liberty to apply to be confined to pure matters of machinery, or to be made in a summary way. Bonnici & Anor v Ku-ring-gai Municipal Council [2001] NSWSC 1124 is an example of an application that occupied 14 hearing days being brought pursuant to liberty to apply. Orders had been made on 11 November 1986, and entered on 6 February 1987, restraining the defendant from, in broad terms, permitting or causing the flow of water from a certain street and footpath onto the plaintiff's land so as to create a nuisance, ordering the defendant to carry out a particular scheme of abatement work, and reserving liberty to apply (para [38], [45]). Although that abatement work was carried out, the plaintiffs asserted that it had not prevented the water nuisance from continuing. The plaintiffs filed an application seeking: "… a declaration that there was a continuing nuisance, an order that the defendant cease to cause that nuisance, an order for specified new drainage work to be carried out in the street, a declaration that water flowing in and over the drainage line situated on uphill neighbouring properties was causing a nuisance, an order that the defendant cease to use that line and install a new line directing water on those properties to the rear of the properties, and an order for a retaining wall as specified to be built on the boundary of number 46 and 48. The document also included a claim for special and general damages." 65 That application was filed in the suit in which the orders had previously been made. The defendant sought summary dismissal of the application. Sperling J held that the plaintiff's application was within the scope of the liberty to apply. He quoted, at [165]-[166], the principles as to the usual effect and scope of liberty to apply that I have earlier quoted from Phillips v Walsh and Abigroup v Abignano. He also quoted, at [167], the passage from Ritchie's Supreme Court Practice para 42.12.2 that had been referred to in Abigroup v Abignano, namely: "Liberty to apply in relation to final orders Where liberty to apply is granted in relation to a final order, it is limited to matters concerning the implementation of the earlier order: Dowdle v Hillier (1949) 66 WN (NSW) 155; Cristel v Cristel [1951] 2 KB 725 at 730; Re Porteous [1949] VLR 383. It does not extend to the variation or amendment of the judgment or orders in respect of which the liberty to apply was granted ( Wentworth v Woollahra Municipal Council (CA(NSW), 31 March 1983, unreported))" 66 Sperling J continued, at [168]-[172]: "168 The statements of principle in these cases and in Ritchie's should be read as applicable to the ordinary case. The context may show that a more liberal meaning was intended in a particular case.

[46]

181 Can it have been intended that, in that eventuality, the plaintiffs would have to commence fresh proceedings? It cannot. To so intend would serve no purpose. It would be absurd. Contractually, liberty to apply in this case included the right to move for a determination that the conditions existing at the commencement of the proceedings and continuing thereafter constituted a nuisance. The defendant is estopped by contract from opposing an application for that purpose." 68 An appeal from that decision was dismissed: Ku-Ring-Gai Municipal Council v Bonnici [2002] NSWCA 313. Meagher JA (with whom Sheller and Santow JJA agreed) said, at [18]: "At the time each order was made it is quite clear that neither party, nor the Court, thought that the orders would necessarily terminate the plaintiffs' complaints of flooding. Hence the attempts by both parties to revive the litigation after the first set of orders. In my respectful view, Sperling J applied the right principles." 69 A reservation of liberty to apply, by a 21st-century judge of the New South Wales Supreme Court, needs to be understood in the context of the particular practices and procedures that this court has now. Section 56 Civil Procedure Act 2005 must be taken into account. It says: "(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule." 70 If there is a question that needs to be decided in working out an order for specific performance, but it is too complex to be decided by a summary procedure, the Court should, in application of section 56, give whatever procedural directions are needed to enable it to be decided. 71 Some aspects of the passage from Abigroup v Abignano, quoted at para [51] above, require comment in this respect. First, the remarks were made in the context of a dispute about the validity of a bankruptcy notice, where the dispute turned on whether a particular judgment that ordered payment of money, but also reserved liberty to apply, was a final order. Thus, the context did not call for their Honours to give an exhaustive exposition of what was involved in liberty to apply, only to decide that a reservation of liberty to apply could be made in a final order. Second, there is some ambiguity in what is meant by "questions of machinery which may arise from the implementation of a court's orders." Previous decisions about the circumstances in which liberty to apply can be used show that they involve "machinery" in the sense of choosing the means by which the order is to be carried out, but they are not necessarily restricted to "machinery" in the sense of implementing a set of ready-made procedures, such as the court's enforcement procedures by execution, garnishee, or orders for substituted performance. Third, the statement that orders granting liberty to apply "relate to enforcement and not to statements of the rights of the parties" needs to be understood bearing in mind that there is not a dichotomy between enforcing an order, and stating or deciding rights of the parties. Sometimes, enforcement of a specific performance decree will involve determining rights of the parties. It seems to me as though the statement I have just quoted from Abigroup needs to be understood as saying that, if deciding or stating a right of the parties is not part of enforcement of the order, then it cannot be done under liberty to apply.

[47]

Reservation of Further Consideration 72 If the orders in a suit also reserve further consideration, that enables matters not disposed of by the orders made thus far in the suit to be dealt with on a later occasion. 73 As Young J held in Rosser v Maritime Services Board of New South Wales (1996) 14 Building and Construction Law 375, at 382: "Reservation of further consideration does not permit the judge to review and reconsider what has been decided by him at an earlier hearing. I so held in NSW Egg Corp v Peek (No 3) (unreported, 13 June, 1986) which was based on what Lord Gifford MR said in Le Grand v Whitehead (1826) 1 Russ 309 at 311; 38 ER 120 at 121, supported by Pritchard v Draper (1830) 1 Russ & M at 191 at 198; 39 ER 74 at 77 ; Lyne v Lyne (1856) 8 De G M & G 553 at 559; 44 ER 503 at 506 and Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22." 74 Further, neither liberty to apply nor reservation of further consideration can be used to obtain an order outside the scope of those sought in the initiating process: Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22. 75 One circumstance in which an order for further consideration was traditionally made was if an inquiry or taking of accounts was ordered before an Associate Justice, and the judge who had directed that inquiry or taking of accounts intended to give further consideration to the suit once the outcome of the proceedings before the Associate Justice was known. 76 An unusual feature of the order for further consideration involved in the present case is that it purports to reserve further consideration by an Associate Justice. The traditional English practice was for any hearing on further consideration to be before a judge: Daniell's Chancery Practice, 8th ed p 1009. As well, reserving further consideration of an action is, in effect, adjourning it: ibid. Usually, if a judge adjourns a case part heard, it is that judge who should, eventually, resume the hearing. However, notwithstanding that unusual feature of the order for further consideration, this is not an appeal or application for leave to appeal from the order for further consideration. As well, in the present case, the fact that the order for further consideration related to consideration by an Associate Justice will probably have no practical effects. This is because the administrative arrangements in the Equity Division are that any case of a type that is usually heard by an Associate Justice but is likely to take more than three days is referred to a judge, and the hearing of the Opponent's notice of motion in the Commercial List would be likely to take more than three days. Even so, these reasons for judgment should not be read as involving any endorsement of the practice of reserving further consideration to an Associate Justice - I would need to hear further argument before reaching a final view on the correctness of any such practice.

[48]

Can the Person Ordered to Specifically Perform Raise Questions for Decision? 77 There is no reason of principle why questions that are decided pursuant to a reservation of liberty to apply and a reservation of further consideration are restricted to questions that the party that has obtained the order in question wishes to raise. Both parties to a contract have rights under a decree for specific performance: JAG Investment Pty Ltd v Strati [1981] 2 NSWLR 600 at 603-604 per Hope JA. If the rights of one of the parties to the contract that has been ordered to be specifically performed have not been decided in the course of the judgment giving reasons for ordering specific performance, or arose only after those reasons for judgment were delivered, and if deciding those rights is part of carrying the contract into operation in specie, the liberty to apply can provide the vehicle for determining those rights. 78 Indeed, it would be fundamentally contrary to the principle upon which courts grant specific performance if, having made the order for specific performance, the court then could not make orders that ensure that the unsuccessful defendant receives what he is entitled to under the contract. As Dixon J said in J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282 at 298: "The doctrine of the Court of Chancery was against decreeing one party to perform specifically obligations which the contract imposed upon him, if it was unable to secure to him the performance by the other contracting party of the conditions upon which those obligations depended, and could only leave him to his action of damages at law in the event of the conditions of being underperformed." 79 I agree with the following statement in Meagher, Gummow and Lehane's Equity Doctrines & Remedies, 4th ed para [20-165]: "What, then, is the substance of the so-called defence of mutuality? Probably the best judicial definition is that of Dixon J cited in [20-155]. In substance, it is the same as the better known statement of Ames, Lectures On Legal History , p 370: "Equity will not compel specific performance by a defendant if, after performance, the common-law remedy of damages would be his sole security for the performance of the plaintiff's side of the contract." In Price v Strange [1978] Ch 337 at 367-8; [1977] 3 All ER 371 at 392 Buckley LJ said: "… the court will not compel a defendant to perform his obligations specifically if it cannot at the same time ensure that any unperformed obligations of the plaintiff will be specifically performed, unless, perhaps, damages would be an adequate remedy to the defendant for any default on the plaintiff's part. I C F Spry, Equitable Remedies , 6th ed, at p 91 puts it rather more broadly: "The defence of lack of mutuality arises in proceedings for specific performance where, if the defendant were ordered to perform specifically his contractual obligations, he would not be himself sufficiently protected in view of such unperformed obligations of the plaintiff as might not be susceptible of subsequent specific enforcement and an order of specific performance would be unjust in all the circumstances. This is probably the most accurate statement: certainly it is consistent with J C Williamson Ltd v Lukey (1931) 45 CLR 282; [1931] ALR 157 where, after all, because of the lack of writing the defendant had no remedy at common law at all. It is consistent also with the other authorities cited above in [20-155]. The importance of each of those statements is that it takes account of two things: (a) that "mutuality" is not a requirement that the defendant, if he, rather than the plaintiff, had started proceedings, could have obtained specific performance; and (b) that the relevant date is the date when the decree is made." 80 It happens frequently, in the specific performance of contracts, that the working out of the order that the contract be specifically performed raises questions of whether the defendant has rights that it can assert against the plaintiff. In the ordinary case of an order made on a purchaser's application for the specific performance of a contract for sale of land, if, after the order was made, a question arose of whether the defendant was entitled to rescind, or complete only with the allowance of compensation, the defendant could assert its rights to rescind, or to be allowed compensation, in the course of working out the order. That both parties to the contract could assert rights in exercising liberty to apply was recognised in Turner v Bladin, in the passage quoted at para [60] above, by saying that under the decree the Court could conduct "such inquiries, accounts and other proceedings … as may be necessary to carry into effect all the promises of both parties …".

[49]

Decision 81 In the present case, the question of whether there has been a Disposal of the land prior to the Sunset Date, and if so for what price, is part of the working out of the order for specific performance. That is because whether there has been such a Disposal will decide who has rights, under the contract, to payments of money, either as deposit, or as the other payment to be made if there was a Disposal prior to the Sunset Date. The fact that those rights of the Claimant, or rights of the Opponent, under the contract, arose only once the Sunset Date passed is no reason why the existence of those rights cannot be decided under the liberties that have been reserved in the Commercial List proceedings. 82 Gzell J said that the matters that the Claimant raised in the Equity Division proceedings can "be argued in opposition to the orders sought by Hudson", and that "the matters raised by Australian Hardboard in its proceedings in the Equity Division may be accommodated in answer to Hudson's notice of motion in the Commercial List proceedings". I doubt that, by making those statements, his Honour was intending to convey that the Claimant could raise those matters only by way of defence, and not by a procedure in the nature of a cross-claim. After all, His Honour made clear that a fundamental purpose he was seeking to achieve was avoiding multiplicity of proceedings, and one of the claims that the Claimant was making in the Equity proceedings was that the deposit be returned to it - if the Claimant's claim for return of the deposit could not be brought in the Commercial List proceedings, the objective of avoiding multiplicity of proceedings would not be achieved. Whatever might be the correct construction of his Honour's reasons for judgment in this respect, in my view it is possible for the claim for return of the deposit to be brought in the Commercial List proceedings, under the liberties that have been reserved. 83 In my view, all the questions that the Claimant seeks to have decided in the Equity proceedings can be decided in the Commercial List proceedings including its cross-claim, the bringing of which is currently under suspension (see para [48] above). Gzell J's orders were correct. 84 In some circumstances, a claim that one of the parties to the contract is entitled to a monetary allowance by reason of a breach of contract by another party is correctly regarded as part of the working out of an order for specific performance. Any dispute there might be about whether the Opponent's claim for a monetary allowance by reason of (as it alleges) the deposit not having been paid at the time and in the manner required by the contract is the sort of claim that is part of the working out of the order for specific performance and is a matter that can be decided in the course of the Commercial List Proceedings. I note, however, that whether the Opponent is entitled to seek that sort of monetary allowance does not go to the fundamental question on which this application turns, namely whether all the applications that the Claimant seeks to make in the Equity Division proceedings can be brought in the Commercial List, pursuant to the liberties that have been reserved. 85 The Claimant argues that, if the Equity Division proceedings are stayed, it will be inhibited in arguing that the failure of the Opponent to raise, in the specific performance proceedings that Einstein J heard, any allegation that the deposit had not been paid gives rise to an Anshun estoppel. I do not regard that consideration as affecting the outcome of this application. When all the claims for relief that the Claimant seeks in the Equity proceedings can be raised in the Commercial List proceedings, it is still an abuse of process for the Claimant to start separate proceedings that raise the same issues, regardless of whether the Claimant might have a better chance, in those separate proceedings, of succeeding in establishing an Anshun estoppel. In saying that, I say nothing about whether the Claimant would have a better chance, in the Equity proceedings, of succeeding in establishing an Anshun estoppel. 86 I mention, though, that Mr Wood accepts that it is possible for an Anshun estoppel allegation to be raised in the Commercial List proceedings. As raised in the Commercial List proceedings, such an allegation would take the form of submitting that the reasonable conduct of the proceedings that have already been decided by Einstein J required any allegation that the deposit had not been paid to be made in them, or not made at all. It would involve submitting that it was a matter of no importance, for the operation of the Anshun estoppel, whether the "earlier proceedings" in which the allegation should have been raised occurred in the same suit, or in a different suit. I say nothing about the correctness of any such submissions.

[53]

My conclusions. 96 1. Campbell JA has set out s 56 of the Civil Procedure Act 2005 in para 69 above. Decisions in England where the "overriding purpose" formula was introduced before its introduction into NSW law show that these words are no platitude, or what in the 16th century might be described as "comfortable words", but have real meaning. As Professor Zuckerman says in his Civil Procedure (LexisNexis UK, 2003) the words mean that the court is to be proactive and take the initiative to direct the intensity and pace of the litigation process in order to facilitate the just, quick and cheap resolution of the real issues in the proceedings. This means, inter alia, that the courts' approach must be to adapt process to the resolution of the dispute (Zuckerman, 1.83 et seq). However, there is a limit, the usual limit being where it would be unjust or unfair to a party to deprive that party of what might be thought to be the ordinary court process. On the other hand it should be noted that there is no right in procedure so that to abbreviate a usual procedure does not amount to an unjust or unfair denial to a party. 97 On page 18 of the transcript before us, I said to Mr Newlinds SC, who appeared for the claimant with Ms N L Sharpe, "It's terribly tempting sitting up here to just say well let's stop the stay of Gzell J's suit and have both of the suits heard together before some judge in the first instance and see what happens, but that's not going to appeal to the technicalities of either side." Mr Newlinds answered, "Well no, that appeals to me, that's second prize." 98 At page 31 of the transcript there was the following exchange between Mr Wood (who appeared with Mr J Stoljar for the opponent) and myself: "Young CJ in Eq: And you wanted first prize and still want first prize alone. Wood: Yes, indeed, and we have that prize at the moment. The second prize was not on the table before Gzell J. If one applies customary principles to an application for leave to appeal in this court one has to show an error of principle in the judgment generally speaking and substantial injustice, one doesn't show an error where a judge has failed to embrace a case that wasn't put to him. … " 99 Mr Wood is quite correct, as one would expect. Indeed, there is not one word in the judgment of the primary judge about the overriding purposes and it would appear that the matter was not raised before him. 100 However, in my view based on the way in which overriding purpose or its English equivalent has been construed by the courts, it is the duty of each judge, notwithstanding what the parties have submitted, to find the approach which will enable the disputes between the parties to be resolved in the most efficient way. Moreover, as Professor Zuckerman's book shows, it is the duty of the parties to co-operate in finding that solution. 101 To my mind, if even on appeal an efficient solution appears, then it is the duty of the Court of Appeal to apply that efficient solution, it is the duty of the parties to co-operate in that solution, and it is impermissible for a party to say that the judge below was not in error because the matter was not raised before him. 102 The further matter that could have been argued by the opponent, was that there is nothing in the draft notice of appeal to suggest there was any error made in this respect. I would make the same comment. 103 Fortunately, as this is a dissenting judgment, I do not have to do anything more than say what I have said. If I were in the majority, I may have to consider whether it would be fair and just to allow leave to appeal on this basis and what order for costs should be made. 104 I should add that this case was what in older days would have been called a commercial cause. Even as long ago as 1903 when the Commercial Causes Act, ss 5 and 6 were enacted the court was required in such a cause to provide for the speedy determination of the questions arising. The purpose of the Commercial List is to enable commercial matters to be dealt with even more quickly than cases in the "ordinary" list of the court, indeed, this is one of the reasons why a premium fee is charged for such causes. Even bearing in mind that there is often considerably more money in dispute in these causes than in ordinary proceedings, the court needs to be extremely careful to ensure that they are not made a "cash cow" for lawyers by being involved in procedural technicality after procedural technicality. The court has a very real duty to ensure that the real questions between the parties are dealt with as efficiently as possible. 105 2. It seems to me, with great respect to everyone concerned, that this case has been in a procedural mess from the beginning. 106 The initial summons filed on 21 May 2004 sought a series of declarations, an order for equitable compensation and: "8. Orders that the Entitlement Deed be specifically performed." 107 Although the proceedings have been labelled "specific performance" in the initial judgment of Einstein J (Hudson Investment Group Ltd v Australian Hardboards Ltd [2005] NSWSC 716), in the judgment of the Court of Appeal (Australian Hardboards Ltd v Hudson Investment Group Ltd [2006] NSWCA 146), in the decision below and in the draft reasons of Campbell JA, in my view, the proceedings were never a specific performance suit in the true sense at all. 108 This is a vital matter because if the proceedings were a specific performance suit, then none of the considerations as to liberty to apply and further consideration reserved would have any relevance, because where there is a specific performance suit the court is always able to make supplemental orders; see eg Ford-Hunt v Raghbir Singh [1973] 1 WLR 738. 109 Furthermore, although the contractual rights between the parties still exist, any enforcement of those rights can only take place with the approval of the court which made the specific performance decree: Singh (Sudagar) v Nazeer [1979] Ch 474, 480; Hughes v Pellicciari (1982) 2 BPR 9509 and see Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245, 260. 110 The reason why I say that the proceedings were not specific performance in the strict sense at all, is that the authorities make it abundantly plain that one must distinguish between specific performance suits strictly so called and what might be called quasi specific performance suits. As long ago as 1873, Lord Selborne LC in Wolverhampton and Walsall Railway Company v London and North-Western Railway Company (1873) LR 16 Eq 433, 438-9, said: "I cannot help observing, that there is some fallacy and ambiguity in the way in which in cases of this kind those words 'specific performance' are very frequently used. There is a class of suits in this Court, known as suits for specific performance of executory agreements, which agreements are not intended between the parties to be the final instruments regulating their mutual relations under their contracts. We call those executory contracts as distinct from executed contracts: and we call those contracts 'executed,' in which that has been already done which will finally determine and settle the relative positions of the parties, so that nothing else remains to be done for that particular purpose. The common expression, 'specific performance,' as applied to suits known by that name, presupposes an executory as distinct from an executed agreement, something remaining to be done, such as the execution of a deed or a conveyance, in order to put the parties in the position relative to each other in which by the preliminary agreement they were intended to be placed." 111 Specific performance is an equitable remedy. It applies where a person has an equitable right and he or she or it is being denied the full legal right which the parties intended. Equity then compels the defendant to grant the legal right by the proper means. 112 Accordingly, in the ordinary case of a purchaser's suit for specific performance of a contract for the sale of land, the court orders that the vendor hand over a transfer in registrable form and the certificate of title or a proper conveyance by deed. Once the plaintiff has legal title, there is nothing further for equity to do. 113 However, where a contract is an executed contract, perhaps it is better to say, executed on one side, then if damages are not an adequate remedy, equitable relief approximate to specific performance may be given (to use the words of Isaacs J and Rich J in Pakenham Upper Fruit Co Ltd v Crosby (1924) 35 CLR 386 at 394). This is sometimes called quasi specific performance. Such relief is given by way of mandatory injunction such as occurred in Greene v West Cheshire Railway Co (1871) LR 13 Eq 44. If damages are an adequate remedy, then common law damages might be given, such as occurred in British Columbia where Macfarlane J noted this consequence in Guest v Beecroft (1957) 10 DLR (2d) 657, 659. 114 In Fell v NSW Oil & Shale Co (1889) 10 LR (NSW) Eq 255, 259-60, Owen CJ in Eq said: "There arises not unfrequently some confusion between two classes of suits - both popularly described as suits for specific performance, though governed by very different principles - one, in which the contract is executory, and something remains to be done in order to complete the contract, where the contract is not intended to be the final instrument regulating the relations of the parties under the contract; the other in which the contract is executed, and the Court is asked to compel one of the parties to carry out the contract. To the former class only does the expression specific performance strictly apply. In the latter class the remedy is more frequently sought by way of injunction to prevent some breach of the contract, and so indirectly compelling the performance of the contract." 115 In the commercial cause before Einstein J declarations were made, but there was no equity at all arising in the proceedings. If the proceedings could be popularly described as specific performance, they were what lawyers would properly call in the nature of specific performance or proceedings for quasi specific performance. 116 It follows that a claim that the deposit was not paid was a claim at common law for debt. If such a claim had been made on the pleadings, then it should have been decided by the judge. It is possible to delegate matters to an Associate Justice so that he or she can determine some only of the issues (see Supreme Court Rules, Schedule D Part 4) (which probably makes obsolete an aspect of this court's decision in Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465). However, whilst this is theoretically possible, for reasons which I will note subsequently, such a course should hardly ever be taken. 117 In so far as the claim for $10 million is concerned, if this is a cause of action that arose at law after the commencement of the proceedings, then one would have to pay close attention to Baldry v Jackson [1976] 2 NSWLR 415, and what is now s 64(3) of the Civil Procedure Act 2005. 118 The reason why a judge cannot or should not delegate part of a case after he or she has given the principal judgment is that it was only possible in equity to do so because, after the abolition of the old Masters in Chancery, the proceedings before their successors, Clerks in Chancery (who were later renamed Masters) were deemed to be making enquiries in the chambers of the judge who had made the decree. Those Clerks or Masters accordingly (and the parties appearing before them) were bound by all the decisions of fact that the judge had made. 119 If, however, one does not have that set-up, and it never existed at common law where cases were tried at nisi prius and probably has ceased to apply in NSW after the repeal of the Equity Act 1901, the judge or master making the further consideration of the case is not bound by the findings of the original judge unless there is an estoppel. 120 This notwithstanding, in light of what I have said above, it is hardly ever appropriate after a judge has dealt with the principal matters in dispute to delegate what is left to an Associate Justice unless it is clear that no question of fact can arise and that the parties are bound by the determination made by the original judge. 121 It would follow on this analysis, in my view, that the order made by Gzell J must, at the very least, be modified to include some provision that the further trial can only be tried by Einstein J unless the parties undertake to the court that they will be bound by any finding that Einstein J has already made in the proceedings. However, the alternative is to follow the course which the claimant proposes. In either case, some adjustment must be made of the order below. 122 With great respect to those who made it, I do not see how the ramifications of such an order were properly thought through and it would seem that none of the difficulties which I have mentioned above were ever raised. 123 However, because this court has already considered that the case is one for specific performance and that the decree for specific performance was properly made, there is no alternative but to proceed on that basis. 124 If one does proceed on that basis, then, as I have intimated earlier, there is no need to go into discussions as to the extent of liberty to apply and reservation of further consideration. Even in a statutory court such as the Federal Court of Australia, it is recognized that supplemental orders can always be made in cases of specific performance; see Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, 235. 125 Furthermore, it is clear that when considering such a supplemental order it does not matter that facts have arisen since the decree was made; see Ford-Hunt v Raghbir Singh referred to earlier; Northern Counties Securities Ltd v Jackson & Steeple Ltd [1974] 1 WLR 1133; In re Scowby [1897] 1 Ch 741. See also Neylon v Dickens [1987] 1 NZLR 402; Cowan v Cavanagh [1978] VR 665; cf A R Marr Pty Ltd v Chaplin (1986) 66 ACTR 31 and see Spry, Equitable Remedies, 6th ed (2001) pp 319-321. 126 3. Part of the reason why so much effort is being expended on this particular point is because the opponent fears Anshun. 127 It is wise to do so. Indeed, there is authority that what might be called "Anshun extended" applies where one has a suit for specific performance. 128 In Dillon v Macdonald (1902) 21 NZLR 375, 393, the New Zealand Court of Appeal said that when making an application for specific performance, the plaintiff must make all her claims in the one action and cannot later, because she chose to limit her prayers for relief in the original proceedings, take a second proceeding claiming another remedy in respect of the same cause of action. 129 This was built upon by Cooke P (as his Lordship was before being ennobled) when giving the judgment of the New Zealand Court of Appeal in Neylon v Dickens supra at 409. His Lordship said that the court would not allow new issues to be raised on a supplemental enquiry in cases of specific performance because that would be an abuse of process and cited Dillon v Macdonald. Dillon v Macdonald was also adopted by the Victorian Court of Appeal in King v Lintrose Nominees Pty Ltd (2001) 4 VR 619 (per Callaway JA at 626 with whom Buchanan JA agreed and Batt JA does not appear to have dissented from). 130 Accordingly, even if the matter proceeds as the majority intend by further orders being made in the commercial cause before Einstein J, not only Anshun, but Anshun extended, may well be an issue; the very issue that the opponent has sought to avoid by these convoluted interlocutory proceedings. 131 Lest it be thought that my reasons set out in section 2 above are some new invention, might I note that during the transcript of argument I raised the problem (though not the development of it in these reasons). 132 At p 8, I put to Mr Newlinds: "But the summons sought an order for specific performance and the defendant argued that it shouldn't be specific performance so it would seem that everyone was debating about specific performance but no one actually directed their mind as to what that meant." Mr Newlinds replied: "Correct. I think that's fair." 133 At p 3, I was perhaps a little bolder. The transcript reads (as corrected): "Young CJ in Eq: What on earth does a decree that there be specific performance mean? Newlinds: This is the heart of this case I submit. We say one answers that question by looking at the context in which the order was made which involves looking at the issues that were posed before Einstein J; looking at the way the case was run before his Honour. Young CJ in Eq: How could it? I mean normally a judge makes an order for specific performance and it's left to the master to work out how it's going to be implemented. Newlinds: Yes. Young CJ in Eq: But specific performance decree for a document of this kind is almost a nonsense. Newlinds: And that's the problem because his Honour made that order." 134 Justice Gzell made the order that he did because he was of the view that all matters could be properly dealt with in the commercial cause. However, as Mr Newlinds pointed out, on a directions hearing before Einstein J in the commercial cause, the opponent submitted that the claim by the claimant in the equity proceedings could be dealt with in the commercial proceedings by way of cross claim. Gzell J took that view, but subsequently on directions hearings before Einstein J, the opponent objected to that method of proceeding. This in itself shows that his Honour fell into error. 135 Mr Wood puts that that is rather harsh. If one analyses the position correctly, the procedural rules mean that the claimant cannot put forward a cross claim in the "liberty to apply" proceedings before Einstein J, but if the opponent succeeds in those proceedings the matter becomes academic, and if the opponent fails, then at that stage the stay imposed by Gzell J will be lifted. It is quite consistent, in Mr Wood's submission, with the decision of Gzell J that the claimant is not to use its claim for the deposit as a sword, but it can be used as a shield. 136 Mr Wood puts that the position taken by Gzell J was sensible in allowing common issues to be dealt with in the former commercial cause and postponing the issue that did not fall into this category. 137 There was discussion between the bench and Mr Wood as to whether this sort of approach was usually the cause of greater cost being expended rather than costs being saved, but none of those discussions seem to have taken place below. 138 To my mind these considerations show that, with respect, the learned primary judge was in error. The scenario which he favoured could not deal with all the issues in the joint proceedings and it had the effect of possibly causing greater cost because the effect of what his Honour did, no matter what he intended, as shown by subsequent events, is that there is now possibly going to be a two-stage further hearing. 139 I should make a few other disparate comments. 140 The first is that if these proceedings were a genuine equity suit (they are not, but the parties may be now estopped from denying that they are an equity suit) then, within limits, there is a very wide ability of a court of equity to do justice if subsequent events show that its continuing order may need to be reconsidered. An example is Permewan Wright Consolidated Pty Ltd v Attorney General (1978) 35 NSWLR 365. The court can, in an extreme case, as in Permewan Wright, suspend the operation of an order even though it has been passed and entered. That point does not arise in the instant case. I merely mention this as an example of the extent of the power of equity to make sure that the result of an equity suit never causes unconscionable harm. 141 Finally, I should indicate that with the greatest respect I cannot agree with what Campbell JA has said in paras 81-84 of his reasons. 142 4. As I have noted, this is a dissenting judgment, so it is not necessary for me to consider in any depth what orders follow. 143 I am acutely conscious of the point that Mr Wood constantly made which is, in my words, not his, the proposition that no matter how this court may consider there to be have been misunderstandings and errors, this court is bound only to interfere if it can see some error that was made by Gzell J which is picked up by the draft notice of appeal. 144 However, for reasons I have already given, the statutory duty on this court in the overriding purpose of the Act means that this consideration is not given as high a priority as otherwise might be the case. 145 In my view the appeal should be allowed and orders made that both sets of proceedings be heard together. 146 I appreciate that the form of order suggested by the majority means that this will in effect happen. If such an order were to be made, I would not agree that it would be appropriate that the claimant pay the opponent's costs of this application as it seems to me that the opponent as dominus litus is probably more to blame than anybody else for the problems that have arisen. **********

At a glance

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Before

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Judgment (54 paragraphs)

Parties

Cases Cited (31)

Cited By (50)