Fitzgerald as Administrator of the Estate of the Late Lesley Provan v Cooper; Fitzgerald as Administrator of the Estate of the Late Lesley Provan v The Valley Centre for Environmental Education & Research Incorporated
[2020] NSWSC 451
Supreme Court of NSW|2020-04-16|Before: Williams J
respondent. The plaintiff's notice of motion filed on 3 February 2020 in proceeding 2018/88427 is dismissed. The plaintiff is to pay the costs of the defendant in each proceeding of the notice of motion....
Key principles
An order for consolidation or a joint hearing under UCPR r 28.5 should only be made where the proceedings are substantially similar in nature, involve common issues of fact and...
The existence of common witnesses, or a broadly overlapping factual matrix, is insufficient on its own to justify a joint hearing unless the plaintiff identifies material common...
A joint hearing should not be ordered where it would impose significant additional hearing time and costs on defendants and the applicant has not demonstrated a likely net saving...
A sequential hearing before the same judge is undesirable where the judge would risk forming an assessment of a witness's general credit in one proceeding (in which the witness...
Issues before the court
Whether the Cooper proceeding (2018/88427) and the Valley Centre proceeding (2018/80831) should be heard together (consolidated/joint hearing) under...
Plain English Summary
The plaintiff asked the court to order two related but distinct equity lawsuits be tried together or sequentially before the same judge. Williams J refused. The court applied the pragmatic consolidation/joint-hearing test under UCPR r 28.5 and concluded the cases involve different transactions, different legal questions and largely different evidence; the plaintiff failed to show material common evidence beyond two limited items. A joint trial would likely impose extra hearing time and costs on the defendants without demonstrated overall savings. A sequential hearing before the same judge risked unfairness and apprehended bias because the judge might form credit impressions of a witness in one hearing (where she is unrepresented) before hearing her as a party in the other. The motion was dismissed and costs ordered against the plaintiff.
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Deep Dive
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If not a joint hearing, whether the proceedings should be sequentially listed to be heard by the same judge (Valley Centre first, then Cooper).
Whether claimed overlapping evidence or the risk of inconsistent findings justified consolidation.
Cited legislation
3 cited instruments linked from this judgment.
What happened
This interlocutory judgment concerns an application under Uniform Civil Procedure Rules 2005 (NSW) r 28.5 to consolidate or otherwise have two separate equity proceedings heard together or, alternatively, sequentially before the same judge.
Two proceedings were commenced by the same plaintiff, Amba Fitzgerald as administrator of Lesley Provan’s estate: (1) the Cooper proceeding (2018/88427) against Tracey Anne Cooper and (2) the Valley Centre proceeding (2018/80831) against The Valley Centre for Environmental Education and Research Incorporated. The plaintiff sought a joint hearing (evidence in one matter to be evidence in the other) or, alternatively, that Valley Centre be heard first and immediately followed by Cooper, both before the same judge.
The defendants opposed the joint hearing. Ms Cooper opposed the sequential order; the Valley Centre neither opposed nor consented to the sequential proposal.
Williams J conducted a pragmatic exercise under r 28.5, applying the approach in Ghose v CX Reinsurance Co Ltd and the Humphries factors, examined the pleadings and the affidavit material, and dismissed the plaintiff’s motion on 27 April 2020. Costs were ordered against the plaintiff.
The practical dispute is this: although the two proceedings arise from relationships between the deceased and Ms Cooper and from transactions involving property and finance, they concern different alleged transactions, different properties and different legal causes of action. The plaintiff argued there were common issues and witnesses and that a joint hearing would avoid inconsistent findings and save hearing time and cost. The judge found otherwise.
Why the court decided this way
The court applied a pragmatic discretion, guided by authority (Ghose; the long-standing statement in Cousins v Cousins about consolidation being desirable where issues and evidence are substantially the same) and the nine-factor list articulated in Humphries (reproduced at [11]-[12] of the judgment).
Key elements of the court’s reasoning:
Nature of the claims: The Cooper proceeding principally concerns an alleged verbal agreement/common intention between the deceased and Ms Cooper (circa 2004) regarding joint property acquisitions and subsequent representations about beneficial ownership and loan apportionment affecting multiple properties (Glossodia House, Unit 13, Unit 11). The Valley Centre proceeding principally alleges that the deceased made loans to the corporate Valley Centre in 1997–1998 and that the Centre made representations (via financial statements, certificates, loan applications and conduct) inducing an assumption of entitlement to repayment; the plaintiff seeks an equitable charge over the Centre’s Lower Portland property to secure repayment (see the court’s breakdown of claims).
Lack of meaningful common issues: Although there is a broad factual matrix (shared people, certain overlapping documents), the principal transactions are different in time and substance. The matters suggested as common, representations, reliance, assumptions, equitable defences, limitations, are generic concepts that arose in each proceeding but as to different subject matter (see the court’s analysis under “Are there common issues of fact or law?”).
Insufficient common evidence: The plaintiff did not identify material evidence expected to be given in both proceedings apart from two limited exceptions: an 11-page loan application dated 4 December 2009 and one exhibit that appears identically in affidavits served in both proceedings. The schedule of affidavits (Schedule A) did not demonstrate overlapping substance (see [29]-[31]).
Costs and hearing time: The plaintiff’s estimates that a joint hearing would take 2.5–3.5 weeks versus 2–2.5 weeks for separate hearings were high-level and unsupported. The practical consequence would have been additional hearing time and costs to each defendant; this counted against consolidation (cf. Humphries factor on likely saving of time) [52]-[53].
Sequential hearing and prejudicial risk: The judge also rejected the proposal that one proceeding be heard immediately followed by the other by the same judge. A particular concern was that Ms Cooper would be a witness in the Valley Centre proceeding without being a party (thus unrepresented) and later a party in the Cooper proceeding. If the same judge heard Valley Centre first, there is a real risk that the judge might form an assessment of Ms Cooper's general credit before she can be heard and represented in the Cooper proceeding; that risk of actual or apprehended bias weighed against the sequential hearing order.
For these reasons, the court found that the conditions in r 28.5 were not met in a way that would justify the relief sought by the plaintiff.
Before and after state of the law
Before: The decision sits squarely in established procedural jurisprudence about consolidation and joint hearings. The court expressly relied on (and followed) Ghose v CX Reinsurance Company Ltd for the pragmatic approach and on Cousins v Cousins for the proposition that consolidation is appropriate where issues and evidence are substantially the same. The Humphries factors provide a convenient checklist to structure analysis.
After: This judgment applies those principles to a factual matrix involving overlapping relationships but discrete claims. It emphasises that mere factual overlap or shared witnesses does not suffice; a party seeking consolidation must identify material common evidence and demonstrate likely efficiencies that do not unfairly prejudice other parties. It also underscores practical fairness concerns when sequencing hearings before the same judge, especially where a witness in one proceeding will be an unrepresented witness but a party in the other.
Practitioners should take from this judgment that courts will require a detailed, evidence-based demonstration of commonality and efficiency before ordering consolidation; general assertions or chronological cross-references in affidavits will usually be insufficient.
Key passages with plain-English translation
The statutory power: r 28.5 (quoted). Plain English: The court can consolidate or have trials together or one immediately after another if proceedings raise common questions, arise from the same transactions, or there is some other reason to do so. The power is discretionary and is aimed at efficiency and fairness.
The pragmatic test (quoting Ghose): "the Court's essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing ... or entirely separate hearings." Plain English: The decision is fact-specific; the judge balances time and cost savings against the need for a fair hearing for each party.
Common witnesses are not enough: The judge observed that even though witnesses and some documents are shared, the plaintiff did not show that those witnesses would give the same evidence in both matters. Plain English: You must show not just shared people, but that they will be saying the same things that materially overlap across the proceedings.
Prejudice from sequential hearing: The court highlighted the risk that a judge might form an impression of Ms Cooper's credibility in the first matter where she is unrepresented, and then carry that impression into the second matter where she is a party. Plain English: Do not force the same judge to hear two related but distinct trials if doing so would make it unfair to a party who will only be represented in the later hearing.
Costs/time estimates need detail: The court discounted high-level time estimates that were not broken down. Plain English: If you claim consolidation will save time, show the math and explain which evidence will be avoided being called twice.
(References to these points are drawn from the court’s analysis in the substantive sections addressing r 28.5, the nature of the claims, common witnesses and time/cost considerations.)
What fact patterns trigger this precedent
This judgment is primarily relevant where:
Two or more proceedings arise from the same broad set of relationships or time period but involve distinct transactions or properties, and one party seeks consolidation or a joint hearing on grounds of efficiency.
There are shared witnesses and some shared documents, but the common material does not clearly go to the same issues in each proceeding.
One of the proceedings includes a family provision claim dependent on estate value, such that the outcome of another proceeding might affect valuation, prompting an applicant to seek sequencing rather than consolidation.
The party seeking consolidation does not provide an itemised demonstration of overlapping evidence, nor a breakdown of estimated hearing time to show net savings.
If the above factual features exist, this judgment suggests a court will scrutinise whether consolidation or a same-judge sequential listing truly serves efficiency without compromising fairness.
How later courts have treated it
The judgment itself does not record subsequent treatments. It applies well-established tests (Ghose, Cousins, Humphries) rather than creating new law. Practitioners should research subsequent NSW decisions to see whether Williams J’s approach to evidentiary demonstration and sequencing bias concerns has been cited or adopted in comparable contexts, but this judgment is consistent with the orthodox approach to consolidation: pragmatic, fact-driven, and protective of fairness.
Still-open questions
How granular must a party’s evidentiary showing be to establish ‘material common evidence’? Williams J required more than a schedule of affidavits; future courts may clarify the degree of specificity required (for example, whether a chart mapping paragraphs across affidavits suffices).
The boundary between acceptably pragmatic sequencing and unacceptable risk of apprehended bias when the same judge hears related matters remains fact-sensitive. Williams J emphasised prejudice where a witness is unrepresented in the first hearing; different facts (e.g., where the witness is represented or where credit is unlikely to be a central contested issue) may lead to different outcomes.
Whether courts will impose conditions (such as excluding certain evidence from being relied upon in the second hearing) to permit a single judge to hear sequential matters without apprehended bias is an open question not addressed here.
Practitioners should prepare detailed affidavits showing precisely which witnesses will give identical or substantially overlapping evidence, and provide a clear breakdown of estimated hearing time and how joint hearing will reduce total hearing days and costs. Where sequencing is sought, consider and address potential fairness and bias issues by proposing safeguards or alternative mechanisms (e.g., separate judges, directions about cross-use of evidence, or expedited separate listings).
Disclaimer: This analysis summarises and explains the reasoning in Fitzgerald (Administrator) v Cooper; Fitzgerald v Valley Centre [2020] NSWSC 451. It is legal information only, not legal advice. I may make mistakes. Before acting on this material, relying on it in litigation, or using any draft or strategy, get a qualified Australian lawyer to check it.
Judgment (13 paragraphs)
[1]
Nature of the application and applicable principles
Amba Marguerite Fitzgerald, as Administrator of the Estate of the Late Lesley Provan, is the plaintiff in proceeding 2018/80831 and the plaintiff and cross-defendant in proceeding 2018/88427. It is convenient to refer to Ms Fitzgerald as "the plaintiff".
On 13 March 2018, the plaintiff commenced proceeding 2018/88427 against Tracey Anne Cooper ("Ms Cooper" and "the Cooper proceeding").
On 20 March 2018, the plaintiff commenced proceeding 2018/80831 against The Valley Centre for Environmental Education and Research Incorporated ("Valley Centre" and "the Valley Centre proceeding").
The two proceedings are at the same stage of preparation for hearing.
By notice of motion filed on 3 February 2020 in the Cooper proceeding, as amended orally during the hearing of the motion on 16 April 2020, the plaintiff seeks:
1. an order under r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that the Cooper proceeding and the Valley Centre proceeding be heard together and that evidence in the one proceeding be evidence in the other ("the joint hearing order"); or
2. alternatively, an order under UCPR r 28.5 that the Valley Centre proceeding be heard first and then immediately followed by the Cooper proceeding, and that both matters be heard by the same Judge ("the sequential hearing order").
Ms Cooper and the Valley Centre are the respondents to the plaintiff's motion and oppose the application for the joint hearing order. Ms Cooper also opposes the alternative application for the sequential hearing order and submits that the two proceedings should be heard separately in the usual way. The Valley Centre neither opposes nor consents to the sequential hearing order.
Rule 28.5 of the UCPR provides:
"If several proceedings are pending in the court and it appears to the court:
(a) that they involve a common question, or
(b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or
(c) that for some other reason it is desirable to make an order under this rule,
the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them".
The principles applicable to determining an application for consolidation or joint hearing under UCPR r 28.5 were summarised by Austin J in Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110 at [26]-[32]. At [26]-[27], his Honour endorsed the following statement by Wolff J (as his Honour then was) in Cousins v Cousins (1948) 51 WALR 57 at 60 as applicable to applications for joint hearings (as well as applications for consolidation):
"In my opinion, consolidation is desirable and should be allowed where, as here, the issues are substantially the same, and the evidence is to all intents and purposes identical. I would, however, hesitate to lay down any inflexible rule. Consolidation is intended to save time and expense, as well as to avoid the awkward consequences of contrary findings on the same set of facts. Because it cannot be shown to have been done before in a like instance, it does not follow that the course of procedure which was ordered is not a proper one."
Austin J continued (at [27]):
"… the Court's essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings). A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of litigation if the proceedings remain separate. A pragmatic approach involves the Court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to the Court. I was referred to s 56(1) of the Civil Procedure Act 2005 (NSW), but in my view the articulation of the overriding objective of facilitating the just, quick and cheap resolution of the real dispute between the parties simply confirms the approach to be taken to such matters as consolidation or joint hearing of proceedings."
At [29]-[32], Austin J identified factors that a court is likely to take into account in the exercise of its discretion on an application for consolidation or joint hearing, including the following nine factors articulated by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11]:
"1. Are the proceedings broadly of a similar nature?
2. Are there issues of fact and law common to each proceeding?
3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?
5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?
7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
8. Is one proceeding further advanced in terms of preparation for trial than the others?
9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?"
Adopting the pragmatic approach referred to by Austin J, it is appropriate to examine the nature of the claims in the Cooper proceeding and the Valley Centre proceeding, before considering the factors relied on by the plaintiff as supporting the joint hearing order or, alternatively, the sequential hearing order.
[2]
Nature of the claims in the Cooper proceeding and the Valley Centre proceeding
The plaintiff relied on an affidavit of Samuel Heath Roberts sworn on 3 February 2020 and a further affidavit of Mr Roberts sworn on 13 February 2020. Mr Roberts is the solicitor on the record for the plaintiff in the Cooper proceeding and the Valley Centre proceeding.
In considering the nature of the claims and the issues in dispute between the parties in each proceeding, I have had regard to description of the proceedings in Mr Roberts' affidavit sworn on 3 February 2020, the parties' written and oral submissions and the current pleadings on the court file in each proceeding.
The claims in the Cooper proceedings principally concern:
1. a verbal agreement, or common intention and understanding, allegedly entered into or formed by the late Ms Provan ("the deceased") and Ms Cooper in about late 2004 relating to the basis on which they would purchase investment properties in their joint names;
2. representations allegedly made by Ms Cooper to the deceased in about late 2004 about:
1. the beneficial ownership, as between Ms Cooper and the deceased, of any properties to which they acquired legal title in their joint names; and
2. the manner in which liability for loans secured over such properties would be apportioned as between Ms Cooper and the deceased;
1. whether the deceased relied on those alleged representations and whether it is unconscionable for Ms Cooper to depart from them;
2. a property known as 26 Chestnut Drive, Glossodia ("the Glossodia House") purchased by Ms Cooper and the deceased in January 2005, the legal title to which was held by them as tenants in common as to 99% by Ms Cooper and as to 1% by the deceased and is now held in those proportions by Ms Cooper and the plaintiff (as administrator of the deceased's estate). There is a dispute about:
1. the amount of funds contributed by the deceased to the purchase of the Glossodia House;
2. whether Ms Cooper represented to the deceased in about January or February 2010, in connection with the refinancing of loans secured over the Glossodia House and the property referred to below as "Unit 13", that the Glossodia House was owned beneficially by Ms Cooper and the deceased in equal shares;
3. if so, whether the deceased relied on that representation and whether it is unconscionable for Ms Cooper to depart from it;
4. whether the Glossodia House is owned beneficially by Ms Cooper and plaintiff (as administrator of the deceased's estate) in equal shares;
5. whether Ms Cooper is acting in breach of a fiduciary duty allegedly owed to the deceased and the plaintiff in denying that the plaintiff is entitled to a 50% interest in the Glossodia House;
1. a property known as Unit 13, 68-72 Beaconsfield Street, Silverwater ("Unit 13") purchased by Ms Cooper and the deceased in December 2008, the legal title to which was held by them as tenants in common as to 1% by Ms Cooper and 99% by the deceased. There is a dispute about:
1. whether Unit 13 was owned beneficially by Ms Cooper and the deceased in equal shares in accordance with the agreement or common intention and understanding allegedly formed in 2004;
2. whether Ms Cooper represented to the deceased in about January or February 2010, in connection with the refinancing of loans secured over the Glossodia House and Unit 13, that Unit 13 was owned beneficially by Ms Cooper and the deceased in equal shares; and
3. if so, whether the deceased relied on that representation and whether it is unconscionable for Ms Cooper to depart from it;
4. how the proceeds of the sale of Unit 13 in January 2012 were applied;
1. a property known as Unit 11, 97-101 Beaconsfield Street, Silverwater ("Unit 11") purchased by Ms Cooper and the deceased in December 2010, the legal to which was held by them as tenants in common in equal shares. There is a dispute about:
1. whether Unit 11 was owned beneficially by Ms Cooper and the deceased in equal shares in accordance with the agreement or common intention and understanding allegedly formed in 2004;
2. how part of the proceeds of sale of Unit 11 in December 2016 were applied and the respective entitlements of the plaintiff and Ms Cooper to the balance of those sale proceeds;
3. whether Ms Cooper is obliged to account to the plaintiff in respect of certain rents received for Unit 11 prior to its sale;
1. how liability for amounts owing under a loan secured against the Glossodia House should be apportioned between the deceased's estate and Ms Cooper, having regard to the agreement or common understanding and intention allegedly formed in late 2004 and the alleged representations referred to above; and
2. whether Ms Cooper misappropriated certain moneys from the deceased's estate after her death.
[3]
The plaintiff's application for a joint hearing order
Mr Roberts' affidavits and the plaintiff's written and oral submissions identified the following matters that the plaintiff submitted favour the making of the joint hearing order:
1. similar nature of the proceedings;
2. common issues of fact and law;
3. common witnesses;
4. the desirability of evidence about alleged representations concerning financial arrangements, and reliance on those representations, being adduced in one hearing to avoid a risk of inconsistent findings;
5. the two proceedings are at the same stage of preparation;
6. a saving of time if the proceedings were heard jointly compared to if they were heard separately;
7. absence of inconvenience or prejudice to the defendants if the proceedings are heard jointly rather than separately, and inconvenience to witnesses having to give evidence in two separate proceedings if the proceedings are not heard jointly.
[4]
Are the proceedings similar in nature?
The plaintiff submitted, that the proceedings are similar in nature because:
1. they involve a series of transactions by which the deceased invested in real property by way of loans to Valley Centre and pursuant to the verbal agreement or common intention and understanding allegedly formed by the deceased and Ms Cooper in about late 2004; and
2. the defendant's evidence in each proceeding raises the issue of the source of funds used for the acquisition of the properties in issue in each proceeding.
The defendants submitted that the proceedings do not involve one series of transactions and that there is no common issue in the proceedings about the source of funds used to acquire properties.
I do not consider that the proceedings are similar in nature in a sense that would warrant a joint hearing.
As the analysis of the claims above demonstrates, the two proceedings concern different transactions relating to different properties. The principal transactions in issue in the Valley Centre proceedings are loans allegedly made by the deceased to Valley Centre in 1997 and early 1998, whereas the transactions in issue in the Cooper proceedings involve the acquisition of properties in 2005, 2008 and 2010.
Even if the source of funds used for acquisition of properties is an issue that arises on the evidence in both proceedings (and the defendants submit that it does not), a factual issue about the source of funds used for the different transactions entered into by the deceased with Valley Centre and with Ms Cooper would not, without more, warrant the proceedings being characterised as similar in nature.
At the hearing of the notice of motion on 16 April 2020, counsel for the plaintiff submitted that "what these proceedings have become with the evidence is effectively … a quasi tracing of moneys from the deceased … through a series of investments" (T 3.20). In answer to a question from me, counsel for the plaintiff submitted that:
1. there was a dispute in each proceeding about whether or not the deceased made the financial contributions to property acquisitions and/or loans the subject of that proceeding;
2. in some instances, the resolution of that factual dispute would depend on whether the deceased had the funds allegedly contributed/lent available to her at the time of the transaction in question; and
3. that, in turn, would depend in some instances on the deceased's alleged dealings or transactions in the other proceeding.
[5]
Are there common issues of fact or law?
The plaintiff relies on paragraphs 32 to 37 of Mr Roberts' affidavit sworn on 3 February 2020 as identifying the issues of fact or law that are said to be common to both proceedings. Those paragraphs contain a series of assertions that certain matters are common to both proceedings.
In paragraph 32(a) of that affidavit, Mr Roberts says that the capacity of the plaintiff to bring the proceedings on behalf of the deceased's estate is an issue of fact and law common to both proceedings.
This issue is not pleaded, and the plaintiff's written and oral submissions did not shed any light on how this issue arises in the proceedings.
Paragraph 32(b) of Mr Roberts' affidavit states that there is a common issue about whether the deceased had funds available to her to pay the monies alleged to have been paid to Ms Cooper and Valley Centre, and the source of those funds.
For the reasons already addressed above, the plaintiff's evidence and submissions have not established that this is a common issue.
Paragraph 32(c) of Mr Roberts' affidavit states that there is a common issue about whether Ms Cooper made two representations to the deceased on or about 4 December 2009, one relating to beneficial ownership of the Glossodia House and the other relating to loans made by the deceased to Valley Centre.
Even assuming that both of those representations were made in the same communication or document (although the plaintiff's counsel accepted in oral submissions that Schedule A to the written submissions did not establish this), the first alleged representation is relevant only to the Cooper proceeding and the second representation is relevant only to the Valley Centre proceeding.
At best, there may be some common evidence adduced in the two proceedings about the 4 December 2009 communication, but that evidence will be relevant to a different issue in each proceeding. In oral submissions, the plaintiff's counsel identified that common evidence as a single document: an eleven page loan application document signed by the deceased and Ms Cooper dated 4 December 2009 that is Annexure B to Mr Roberts' affidavit sworn on 3 February 2020.
In oral submissions, the plaintiff's counsel explained that paragraphs 32(d) to (f) of Mr Roberts' affidavit refer to an issue about whether Ms Cooper relied on the deceased in respect of documents relevant to the personal financial affairs of the deceased and Ms Cooper and in respect of documents relevant to the financial affairs of Valley Centre, or whether the deceased was in fact induced by Ms Cooper to make certain assumptions about the beneficial ownership of the properties she owned jointly with Ms Cooper and/or her entitlement to be repaid the moneys allegedly loaned to Valley Centre. Similar points are raised in paragraphs 34 and 35 of Mr Roberts' affidavit.
[6]
Common witnesses
I accept Mr Roberts' evidence and the plaintiff's submissions to the effect that the deceased and Ms Cooper were both closely involved in the affairs of Valley Centre in addition to acquiring together the properties that are the subject of the Cooper proceeding and residing together in the Glossodia House from late 2004 or early 2005 until the deceased's death in June 2013. However, the fact that the different facts pleaded in support of the different claims in the two proceedings arise from the same very broadly cast "factual matrix" does not, by itself, make a joint hearing of the two proceedings desirable or appropriate.
Whilst Ms Cooper is not a party to the Valley Centre proceeding, Valley Centre has served an affidavit of Ms Cooper and it is expected that she will be a witness in both the Valley Centre proceeding and the Cooper proceeding. The plaintiff and seven other witnesses will also give evidence in both proceedings.
However, subject to the two exceptions referred to immediately below, the plaintiff did not identify matters about which these witnesses are expected to give the same evidence in both proceedings. On the contrary, Schedule A to the plaintiff's written submissions indicates that the substance of the evidence given by the witnesses is different. Schedule A was presented as a chronological summary of the affidavit evidence of the witnesses in both proceedings, with each entry in the schedule identifying the paragraph of the witness's affidavit that is summarised and the proceeding in which that affidavit has been served. Counsel for the plaintiff did not address Schedule A in any detail in written or oral submissions, and I have been unable to identify any entry in which the substance of the evidence summarised is sourced from affidavits filed in both proceedings. Each entry refers only to an affidavit filed in one proceeding or the other.
The first exception is the 4 December 2009 document referred to above (see [29]), about which it may be assumed, for present purposes, that Ms Cooper is likely to give evidence in both proceedings. However, for the reasons identified above, any evidence that she would give about that document would go to a different factual allegation in each proceeding.
The second exception is that one of the plaintiff's affidavits in the Cooper proceeding apparently refers to her affidavit served in the Valley Centre proceedings, and that one of the exhibits to each of the two affidavits is identical. This is mentioned in correspondence between solicitors annexed to Mr Roberts' affidavit sworn on 3 February 2020, but the substance and extent of the identical evidence is not identified and this matter was not referred to in the plaintiff's written or oral submissions. If this material contained substantial material evidence common to both proceedings, I expect that the plaintiff would have identified this in submissions.
[7]
The likely course of the evidence
As I have referred to above, there are separate issues about alleged representations, reliance, assumptions and unconscionability that are in dispute in each proceeding.
The plaintiff submitted that evidence of Ms Cooper in the Valley Centre proceeding about whether she signed accounts of the Valley Centre without reading them "may be entirely relevant to" evidence of Ms Cooper in the Cooper proceeding about whether she relied on the deceased to prepare loan applications that Ms Cooper signed. It was submitted that the Court's acceptance or rejection of Ms Cooper's evidence about the first issue may affect the Court's findings about the second issue, or vice versa.
It does not seem to me that Ms Cooper's conduct in relation to signing documents for an entity of which she was an officer would necessarily rationally affect the assessment of her evidence about her conduct in signing documents relating to her personal financial affairs. However, I accept that this might be so if, for example, Ms Cooper gave evidence about her general practices in relation to signing financial documents across a period of time covering the period relevant to both proceedings.
The plaintiff submitted that it would be unsatisfactory for Ms Cooper's evidence about signing documents in one proceeding not to be before the Court in the other proceeding.
However, I do not think this rises above inconvenience to the plaintiff. Whilst it might be convenient for the plaintiff to have all of that evidence adduced in one joint hearing for the purpose of mounting any attacks on the credibility of Ms Cooper's evidence, it will be open to the plaintiff to adduce all evidence relevant to the document signing issue in each proceeding and, to the extent that Ms Cooper's evidence under cross-examination in one proceeding might be inconsistent with her evidence in the other proceeding, to put any such prior inconsistent statements to Ms Cooper.
The plaintiff also submitted that this gave rise to a prospect of inconsistent findings in the two proceedings.
However, a finding about Ms Cooper's conduct concerning the signing of Valley Centre's accounts would not be inconsistent with a finding about her conduct when signing personal financial documents. The two findings relate to different factual issues.
[8]
Time and cost considerations
In paragraph 52 of his affidavit sworn on 3 February 2020, Mr Roberts estimated, based on his experience, that a joint hearing would take approximately between two and a half weeks and three and a half weeks, and that it would take approximately between two weeks and two and a half weeks for each proceeding to be heard separately.
Mr Roberts' estimate was not supported by any breakdown of the estimated time required for key steps during the hearing (or hearings). With respect, I afford little weight to these very high level estimates, having regard to the different issues in the two proceedings and the plaintiff's failure to identify any material overlap in the evidence to be adduced in each proceeding.
In any event, Mr Roberts' estimates would mean that a joint hearing would cause each defendant to incur the costs of additional hearing time in the order of between approximately one week and one and a half weeks. That is a significant cost to impose on the defendants. This is a factor that, together with the other factors addressed above, favours separate hearings rather than a joint hearing.
[9]
Inconvenience or prejudice
The plaintiff submitted that a joint hearing would be convenient to her due to the decrease in the total length (and therefore cost) of the hearing. However, what is convenient to the plaintiff is equally inconvenient and costly to each of the defendants.
The plaintiff also submitted that a joint hearing would be convenient to four elderly witnesses who will give evidence in each proceeding and will therefore each be required to attend and give evidence twice unless an order is made for joint hearing. Two of the witnesses are aged in their sixties. The age of the other two witnesses was not specified in the plaintiff's evidence or submissions.
It does not follow from the fact that a person is aged in their sixties that she or he will have difficulty in attending court on two separate occasions. If any such difficulty arises from the need for these witnesses to travel some distance in order to attend court (and there was no evidence about this), then this can be addressed by appropriate arrangements being made for the witnesses to give evidence remotely via audio visual link.
[10]
Conclusion
Taking into account all of the factors relied on by the plaintiff and my own review of the pleadings in each proceeding and applying the pragmatic approach referred to by Austin J in Ghose v CX Reinsurance Company Ltd at [27], I have reached the conclusion that no order for a joint hearing should be made. For the reasons above, I do not consider that the two proceedings can be described as similar in nature or that they involve common issues of fact and law. There is some similarity between the nature of the legal issues and the nature of the relief claimed, but these issues and claims arise from different facts. Whilst the two proceedings involve common witnesses, the plaintiff has not demonstrated that they involve common evidence (save for the two limited exceptions to which I have referred above) or that the likely course of the evidence in each proceeding is such that they should be heard jointly. The fact that a joint hearing would be convenient to the plaintiff does not warrant imposing material additional hearing time and cost on each defendant. In any event, the estimates put forward by the plaintiff were not sufficiently thorough to persuade me that a joint hearing would in fact be likely to achieve a saving in overall hearing time.
[11]
The plaintiff's alternative application for a sequential hearing order
The proposed sequential hearing order would require the Valley Centre proceeding be heard first and then immediately followed by the Cooper proceeding, and that both matters be heard by the same judge.
For all of the reasons above, I am not persuaded that the nature, issues or evidence in the two proceedings is such that they should be heard by the same judge.
In addition, the proposed sequential hearing order has the potential to prejudice Ms Cooper and raise questions about actual or apprehended bias on the part of the trial judge if (as the plaintiff foreshadowed) there is to be an attack on the general credit of Ms Cooper in each proceeding.
In the Valley Centre proceeding, Ms Cooper will be a witness, but not a party. She will therefore not have legal representation and will not have an opportunity to make submissions about any credit findings that should be made in that proceeding. Under the sequential hearing proposal, the trial judge would be considering and forming (and, indeed, may have formed) his or her assessment about Ms Cooper's general credit before hearing Ms Cooper's evidence in the Cooper proceeding. This is problematic, irrespective of whether the trial judge has already delivered judgment in the Valley Centre proceeding before hearing the Cooper proceeding.
As already noted above, the outcome of the plaintiff's claims in the Valley Centre proceeding may affect the value of the deceased's estate, and this is potentially relevant to the determination of Ms Cooper's family provision claim in the Cooper proceeding. This does make it desirable that the Valley Centre proceeding be heard and determined before the family provision claim is determined in the Cooper proceeding. However, this can be achieved by means other than the proposed sequential hearing order. For example, it is open to the parties to list the matters for separate hearings in the usual way, but seek an earlier hearing date for the Valley Centre proceeding.
[12]
Conclusion and costs of the motion
For the reasons above, I make the following orders:
1. The plaintiff's notice of motion filed on 3 February 2020 in proceeding 2018/88427 is dismissed.
2. The plaintiff in proceeding 2018/88427 and proceeding 2018/80831 is to pay the costs of the defendant in each proceeding of the notice of motion referred to in order (1).
3. List proceeding 2018/88427 and proceeding 2018/80831 for directions before the Registrar in Equity on 4 May 2020.
4. Grant liberty to the parties to apply to vary order (2), such liberty to be exercised by no later than 5:00pm on 1 May 2020 by email to my Associate setting out the orders contended for and written submissions in support of such orders.
[13]
Amendments
24 November 2020 - typographical error
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Decision last updated: 24 November 2020
The plaintiff's notice of motion filed on 3 February 2020 in proceeding 2018/88427 is dismissed. The plaintiff is to pay the costs of the defendant in each proceeding of the notice of motion. Proceedings 2018/88427 and 2018/80831 listed for directions before the Registrar in Equity on 4 May 2020. Liberty to apply to vary costs order by 1 May 2020.
In addition, the Cooper proceedings include a cross-claim by Ms Cooper under Chapter 3 of the Succession Act 2006 (NSW) for provision out of the deceased's estate for her proper maintenance, education and advancement in life.
The claims in the Valley Centre proceedings principally concern:
1. whether the deceased loaned certain moneys to Valley Centre in about late 1997 or early 1998 to fund:
1. the purchase by Valley Centre in February 1998 of a property known as 623 Greens Road, Lower Portland (the "Lower Portland property"); and
2. partial repayment by Valley Centre of moneys owing under a mortgage secured against property owned by Valley Centre at 85 Wimbledon Avenue, North Narrabeen;
1. whether Valley Centre made representations to the deceased during the period from approximately 1999 until March 2012 and/or induced the deceased to assume that she was entitled to repayment of the monies referred to above and certain other moneys allegedly loaned to Valley Centre. The representations are alleged to have been made principally by statements made in Valley Centre's financial statements, in its certificates as to financial affairs lodged with the Department of Fair Trading and in certain loan applications submitted by Valley Centre to third party lenders, and by the conduct of Valley Centre in allegedly operating a running account with the deceased during the period from about June 1996 until about March 2012 under which funds were advanced by the deceased and repaid by Valley Centre from time to time. The officers of Valley Centre who are alleged to have signed the relevant financial statements, certificates, loan applications and other documents include, from 2007, Ms Cooper; and
2. whether the deceased relied on the alleged representations and acted under the alleged assumptions by refraining from calling in the alleged loans during her lifetime.
The plaintiff claims a declaration of equitable charge over the Lower Portland property to secure repayment of the sum of $499,970 said to be owing by Valley Centre to the deceased's estate, and an order appointing trustees to sell the Lower Portland property and pay that amount to the plaintiff from the proceeds of sale.
However, the defendants disputed this high level summary of the issues and evidence, and the plaintiff's submission was not supported by any detailed analysis of the evidence.
Schedule A to the plaintiff's written submissions sets out a chronological summary of affidavits served in both proceedings, but the plaintiff's submissions did not seek to demonstrate how this summary reveals a "quasi tracing" exercise that would be relevant to the pleaded issues in one or both of the proceedings. Counsel for the plaintiff referred me to entries in Schedule A for one period only, namely September 2009. Those entries did not reveal evidence of a "quasi tracing" nature.
It is only by characterising the issues at the highest level of generality that representations, reliance, assumptions and unconscionability can be said to be common issues between the two proceedings. The subject matter of the alleged representations, reliance, assumptions, and the matters that are said to render departure from representations unconscionable, are different in each proceeding.
Paragraph 33(g) of Mr Roberts' affidavit states that there is a common issue in the proceedings about whether the amount claimed to be owing by Valley Centre to the plaintiff is an asset of the deceased's estate, and that this is relevant to Ms Cooper's family provision claim.
This does not mean that the substance of the plaintiff's claims in the Valley Centre proceedings is a common issue across the two proceedings. Rather, the outcome of the plaintiff's claims in the Valley Centre proceeding would affect the value of the deceased's estate, and this is potentially relevant to the determination of Ms Cooper's family provision claim in the Cooper proceeding.
This illustrates the desirability of the outcome of the plaintiff's claims in the Valley Centre proceeding being known before the family provision claim is determined in the Cooper proceeding. This could be achieved by the Valley Centre proceeding being heard and determined before the Cooper proceeding, rather than by a joint hearing.
Paragraph 36 of Mr Roberts' affidavit refers to the fact that the plaintiff seeks declarations in respect of equitable interests in real property in both proceedings.
However, the nature of the relief sought is not a common issue in any meaningful sense as it is sought in relation to different properties and is claimed on the basis of different conduct and dealings that allegedly occurred at different times in each proceeding.
Paragraph 37(a) of Mr Roberts' affidavit states that the denial of the agreement or intention and understanding allegedly formed in 2004 relating to the basis on which the deceased and Ms Cooper would purchase investment properties in their joint names, and the denial of any acknowledgment of a loan account from the deceased to Valley Centre, are common questions in the two proceedings.
However, as demonstrated by the analysis of the claims in the proceedings above, the first question arises only in the Cooper proceeding and the second question arises only in the Valley Centre proceeding.
Paragraphs 37(b) and (c) of Mr Roberts' affidavit state that limitation defences, and equitable defences of laches and acquiescence, are common questions in the proceedings.
These defences are pleaded in both proceedings, but they relate to the different causes of action and claims for relief pleaded in each proceeding, which in turn arise from different facts and in relation to different properties.
If and to the extent that there is an attack on the general credit of Ms Cooper in each proceeding (as the plaintiff's submissions foreshadowed), it is possible that the Court may form a different assessment of her credit in each proceeding. However, each such assessment would be based on the whole of the evidence adduced in that proceeding. A different assessment in each proceeding would therefore not result in inconsistent findings in a sense that would warrant a joint hearing notwithstanding the different nature of the proceedings, the lack of common issues in a meaningful sense and the minimal overlap of the evidence in the two proceedings, as referred to above.