BETWEEN : GENEVA FINANCE LTD (Receiver and Manager Appointed)

Practice and procedure - Application to dismiss action for want of prosecution - Whether public interest considerations arise in action by receiver - Limitation period not expired - Turns on own facts

Limitation Act 1935 (WA), s 38(1)(e)(i)

Third Defendant : Mr N W McKerracher QC & Mr J V O'Dea

Dzienciol & Ors v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998

Jakovljevic v L & B Doslov [2000] WASCA 131

Latrobe Country Credit Cooperative Ltd v Smith & Ors [1998] VSCA 74; (1999) 1 VR 440

Levi & Anor v Stirling Brass Founders Pty Ltd (1997) 36 ATR 290

Tipperary Developments Pty Ltd v State of Western Australia [2002] WASC 283

1 MASTER NEWNES: This is an application by the third defendant to strike out the plaintiff's claim against him for want of prosecution pursuant to O 33 r 1(b) of the Supreme Court Rules, alternatively pursuant to the inherent jurisdiction of the Court. The third defendant says that there has been inordinate and inexcusable delay by the plaintiff in the prosecution of the action and that he has suffered prejudice by reason of the delay.

2 The genesis of the action goes back many years. On 26 July 1990, Mr Quigley was appointed receiver and manager of the property of the plaintiff by Perpetual Trustees WA Ltd, as trustee for debenture holders under a debenture trust deed. At the date of Mr Quigley's appointment there were approximately 2500 debenture holders who were owed a total of approximately $34,462,954. The majority were small investors (approximately 80 per cent having holdings of less than $15,000) and many of them were elderly. A number of investors claim to have lost their life savings by reason of the plaintiff's collapse. Mr Quigley says in his affidavit in opposition to this application that the prospect of any return to the debenture holders depends entirely upon the outcome of various legal proceedings in which the plaintiff is involved, including the current action.

3 Mr Quigley says that investigations following his appointment revealed that First Western Group Ltd ("FWG") was the holding company of the plaintiff and that, at the date of his appointment, FWG owed the plaintiff the sum of $7,895,262, none of which had been recovered. That sum included an amount of $4,931,639.24 in advances made by the plaintiff to FWG in 1990, in respect of which the current claim is brought against the first three defendants.

4 On 28 August 1990, Mr Jeffrey Herbert was appointed receiver of FWG. The company was ultimately deregistered on 30 March 1995. It appears that Mr Herbert realised only $55,528 from the receivership of FWG, of which only $1874 was available for distribution to the secured creditor, the Commonwealth Bank of Australia, in respect of its debt of $1,699,773.

5 Mr Quigley says that in January 1992 he was engaged on a consultancy basis by the Australian Securities Commission ("ASC") to assist in investigating the affairs of the plaintiff. Between 1992 and 1994 the ASC conducted examinations of a number of directors, officers and employees of Geneva, and other persons apparently capable of providing information on the affairs of Geneva. The examinees included each of the defendants to this action and the auditors of the company. The ASC subsequently released to Mr Quigley, in his capacity as receiver and manager of the plaintiff, the information that it had obtained from those inquiries.

6 Mr Quigley says that he also carried out other investigations, including searching through large numbers of storage boxes at the offices of several companies that had had some financial connection with the plaintiff, and at the offices of the ASC, and reviewing the relevant documents that were unearthed. He also made inquiries of former directors of various companies and of other parties who had had dealings with the plaintiff.

7 According to Mr Quigley, as a result of the examinations and that other investigative work, by 1993 he had formed the view that a number of claims, including this claim, were open to the plaintiff. The other claims included one against the auditors of the plaintiff and another against Resource & Industry Ltd.

8 In 1994, proceedings were instituted against the auditors of the plaintiff. Before they were served, however, proceedings were commenced, on 31 October 1994, by the auditors against, among others, Mr Quigley, alleging that the ASC had improperly released information to him. The auditors' claim was ultimately dismissed by the Federal Court on 13 June 1997. The auditors appealed to the Full Court of the Federal Court and that appeal was dismissed on 8 January 1998. On 19 June 1998, the High Court refused the auditors' application for special leave to appeal.

9 Mr Quigley says that, until the action by the auditors was concluded, he was unable to use, in his capacity as receiver and manager of the plaintiff, the transcripts of evidence and other information he had obtained from the ASC.

10 Following the dismissal of the application for special leave to appeal to the High Court, the ASC re-released the information to him in December 1998. Work was then undertaken by Mr Quigley and the plaintiff's solicitors on the preparation of a statement of claim against the auditors, leading to the filing and serving of that statement of claim on 15 December 1999.

11 In the meantime, the writ in this action was issued, on 20 August 1996, although it was not served on the third defendant until 14 February 1997.

12 In this action, the plaintiff claims against the first, second and third defendants pursuant to s 556(1) of the Companies (Western Australia) Code in respect of loans totalling $4,931,639.24 which, it is alleged, were made by the plaintiff to FWG in the period 1 January 1990 to 31 July 1990. The plaintiff alleges that, at the time the loans were made, FWG was insolvent. It says that at the relevant time the first, second and third defendants were directors of FWG and, accordingly, pursuant to s 556(1) they are personally liable to the plaintiff for the debt.

13 Similar claims are made against the fourth and fifth defendants, although the loans in respect of which the plaintiff claims against them, and therefore the amount of the claim, differs in each case.

14 A memorandum of appearance was filed on behalf of the third defendant on 17 February 1997. Appearances were filed by the other defendants at around that time, from which I infer that the writ was served on them at approximately the same time as it was served on the third defendant.

15 The plaintiff filed and served the statement of claim on 24 April 1997 and served it on the third defendant's solicitors on the same day. The third defendant filed and served his defence on 9 October 1997. The first defendant had already filed his defence, on 16 May 1997, and the defences of the other defendants were filed over the period from January to March 1998.

16 In his defence, the third defendant effectively puts the plaintiff to proof of every substantive fact necessary to establish the cause of action and, in addition, says that if the alleged loans were made, they were made without his authority or consent and that, at the time they were made, he did not have reasonable cause to expect that FWG was insolvent or, if it incurred the debt, that it would be insolvent.

17 The plaintiff requested discovery of documents from the defendants on 17 March 1998. The fifth defendant gave discovery on 25 March 1998, but, failing compliance with the request by the other defendants, in June 1998 the plaintiff applied for orders that they give discovery. In July 1998, the second, third and fourth defendants gave discovery. On 26 August 1998, the plaintiff inspected the third defendant's discovered documents.

18 On 19 October 1998, the second defendant made an application for security for costs. By consent, on 18 November 1998, that application was adjourned to be heard at a special appointment. It does not appear to have been heard or to have gone any further.

19 The next step in the action was the filing of a notice of intention to proceed by the plaintiff on 18 October 2000, almost two years later. That intention did not, however, translate into action until 6 August 2001, when an affidavit of Mr Quigley was filed verifying a supplementary list of discovered documents, the plaintiff's first affidavit and list of discoverable documents having been filed and served in December 1997.

20 Some eight months later, on 22 April 2002, a further affidavit of Mr Quigley was filed verifying another supplementary list of documents. A further affidavit verifying an additional supplementary list of documents was filed on 23 December 2002.

21 In the meantime, on 18 December 2002, the solicitors for the third defendant wrote to the plaintiff's solicitors asking if there was any reason why the third defendant should not apply to strike out the claim against him. In the absence of a response they regarded as satisfactory, this application was filed on 24 January 2003

22 In an affidavit sworn on 2 May 2003 in opposition to this application, Mr Quigley, on behalf of the plaintiff, says that on the plaintiff's side all that is left to be done before the matter is entered for trial is a small amount of work to complete an expert report on solvency, the provision of particulars of the statement of claim to the third defendant's solicitors, which the plaintiff is now in a position to provide, and to file and serve a reply to the third defendant's defence, which he understands from the plaintiff's solicitors is a relatively simple task.

23 On the other hand, in an affidavit sworn on 20 February 2003, Mr O'Dea, a solicitor acting for the third defendant, says that the third defendant may need to seek clarification of the further and better particulars of the statement of claim which are still to be delivered by the plaintiff, or may need to interrogate in relation to those issues, and it is likely expert accounting evidence will have to be obtained in response to the plaintiff's expert evidence. It was submitted that the third defendant would also need to start again analysing and gathering evidence, including inspecting the plaintiff's discovered documents. In his affidavit, Mr O'Dea estimates that it is unlikely a trial would be heard within the next two years.

24 The basic principles to be applied on this application were not in dispute. In Birkett v James [1978] AC 297 the House of Lords held that the power of a court to dismiss an action for want of prosecution should be exercised only where the plaintiff's default has been intentional and contumelious, or where there has been inordinate and inexcusable delay on the part of the plaintiff giving rise to a substantial risk that a fair trial would not be possible or would cause serious prejudice to the defendant. Although the relevant delay is that after the issue of the writ, a late start makes it all the more incumbent upon the plaintiff to proceed with all due expedition: Birkett v James per Lord Diplock at 322; Lewandowski & Ors v Lovell (1994) 11 WAR 124.

25 It was accepted that the primary considerations in applying those principles are the length of the delay, the explanation for the delay, the hardship to the plaintiff and the prejudice to the defendant: Ulowski v Miller [1968] SASR 277 per Bray CJ at 280, Lewandowski v Lovell at 133, Duke v Royalstar Pty Ltd [2001] WASCA 273 at par 10; Sangora Holdings Pty Ltd & Anor v Hodder & Anor [2003] WASCA 108. In the end, as the Full Court emphasised in Sangora, what is required is a balancing of relevant interests.

26 The defendant submitted that in this case, by reason of a deliberate strategy adopted by the receiver to pursue other litigation on behalf of the plaintiff in preference to this action, there has been inordinate and inexcusable delay that amounts to a contumelious disregard of the interests of the Court and the parties.

27 There is no doubt that there has been inordinate delay in the prosecution of this action. At the time this application was made more than 6 years had passed since the writ was issued and some 13 years since the relevant events occurred. The interlocutory proceedings are still not complete and a vital part of the case, the plaintiff's expert evidence on insolvency, is yet to be served on the third defendant.

28 In order to determine whether the delay in this case is inexcusable, it is necessary to consider the reasons the plaintiff provides for the matter not progressing more quickly.

29 In his affidavit, Mr Quigley offers three reasons for the delay in prosecuting the action. They are: (a) the relationship of the various actions in which the plaintiff is involved; (b) difficulties in assembling the necessary evidence; and (c) the lack of funding for a trial.

30 The plaintiff's claim against the auditors is for an amount of some $21,414,629 plus interest. Mr Quigley says that if that claim were entirely successful it would obviate the need for, among others, this action, as the damages recovered from the auditors would cover the claims by the plaintiff against various other entities, including the defendants to this action. Mr Quigley says that, accordingly, it has always been his intention to have the action against the auditors heard first. Those proceedings are currently at the stage where they have been programmed for a mediation which is to be arranged by no later than 1 August this year and, if that does not resolve the matter, it appears the action may be listed for trial in the first half of 2004

31 On the difficulties in relation to the evidence in this action, a critical issue on the pleadings is whether, at the time the advances were made by the plaintiff, FWG was unable, or would if the advances were made be unable, to pay its debts as and when they fell due. Mr Quigley says that, in order to investigate the financial position of FWG at the relevant time, he has had to conduct an investigation of the financial position of the some 23 other companies and one limited partnership that had some financial connection with FWG. Mr Quigley says he has had no direct involvement with any of those entities, many of which were insolvent or deregistered before these proceedings were commenced. Indeed, from the list in Mr Quigley's affidavit, it appears that all but one were in liquidation or deregistered by the end of 1993 and the other was deregistered on 10 July 1997.

32 Mr Quigley also deposes to difficulties he has had in obtaining the assistance of former officers and employees of FWG and other companies, including the plaintiff, to help him to ascertain the financial position of FWG at the relevant time. Mr Quigley refers specifically to three potential witnesses, one of whom has refused, and continues to refuse, to provide assistance, another of whom provided assistance for some six months in 2002, but who before and since has declined to provide any assistance (albeit, he was the subject of an ASC examination in 1992 and again in 1993), and a third who, since February 1999, has provided some assistance to him.

33 Mr Quigley indicates that the problem of ascertaining the financial position of FWG has been exacerbated by the fact that the current defendants were also directors of some of the other companies whose financial affairs are relevant to the ascertainment of the financial position of FWG at the time of the transactions.

34 Funding issues are also said to have contributed to the slow progress of the action. Mr Quigley says that, in his view, the plaintiff has never had sufficient funds to proceed to trial with all of the proposed actions and at the same time be in a position to meet the defendants' costs if the plaintiff were unsuccessful. The financial position of the plaintiff in that respect, according to Mr Quigley, has been made substantially worse by the costs it has incurred in the Federal Court proceedings brought against it by the auditors and by the recent failure of the plaintiff's claim against Resource & Industry Ltd. Mr Quigley says that in the former proceedings, the plaintiff incurred costs of some $500,000, after taking into account the amount paid by the auditors in respect of the plaintiff's costs, and in the latter proceedings is likely to incur a liability for costs in the order of $250,000. Mr Quigley says that if the claim against Resource & Industry Ltd had been successful, the plaintiff would have been better off in an amount of some $600,000 and would have been in a position to take this action to trial.

35 The plaintiff says that, notwithstanding those difficulties, considerable work was done up to November 1998 to pursue this action. Since November 1998, although relatively little activity appears from the Court file, a considerable amount of work has been done on behalf of the plaintiff, including collecting and collating the documentary evidence necessary to prove the complex, but critical, issue of the insolvency of FWG.

36 According to Mr Quigley, the plaintiff is currently in a position where it cannot afford to take this action to trial unless it is successful in some other litigation prior to the trial of this action, or it is able to obtain litigation funding for this action. Mr Quigley says that if the Court now orders this matter to proceed to trial, he is willing to attempt to obtain, and has no reason to believe that he will not be able to obtain, litigation funding for it. I might observe that there is no suggestion the litigation funding he says he could now procure to prosecute this action could not have been procured earlier.

37 The third defendant says in response, first, that it must have been obvious to the plaintiff even before this action was instituted that the proceedings would be complex and costly. The action was instituted nevertheless, so it does not now avail the plaintiff to put forward those matters as an excuse for the subsequent delay. Moreover, in such litigation it is all the more necessary to require proper expedition lest the litigation goes out of control and remains a never-ending threat to the defendant: Bishopsgate Insurance Australia Limited (In Liq) v Deloitte Haskins & Sells, unreported; FCt SCt of Vic; 18 April 1994, at 34.

38 The third defendant says, secondly, it is evident that the receiver has taken a deliberate strategic decision to commence a number of separate actions and then pick and choose as to the order in which he will pursue them. In particular, he has chosen to pursue the actions against the auditors and Resource & Industry Ltd in preference to this action with the object of gaining what Senior Counsel for the third defendant described as a "war chest" to fund other litigation, including this action. That has turned out to be an unsuccessful strategy which has resulted in inordinate delay in this action and the resulting prejudice to the third defendant. The consequences of the failed strategy, it is submitted, must now be laid at the feet of the plaintiff.

39 Senior Counsel for the plaintiff did not contest that the receiver had made a deliberate strategic decision to pursue other actions in priority to this action but submitted that the reasons for that have to be understood to put the decision in its proper context. The reasons included not only an attempt to build a "war chest" - which, it was submitted, was an entirely appropriate course for a receiver - but, more importantly, to avoid if possible unnecessary and wasteful litigation. As to the latter, the receiver had decided to pursue the action against the auditors to finality first as, if successful, that would obviate the need for a number of other actions, including this one. The corresponding advantage to these defendants was that if the action against the auditors succeeded, these defendants were "off the hook". That, it was submitted, was an entirely proper and reasonable approach in the circumstances.

40 It was submitted by the plaintiff that while it is true that a considerable period has elapsed since the events in question, the delay is, in large measure, the product of the complexities of unravelling a substantial corporate collapse, in circumstances where the receiver had no participation in or personal knowledge of the events in question, he has had to manage a wide range of complex investigations and proceedings with limited resources and, so far as the proceedings involving the auditors are concerned, against determined and time-consuming resistance and, in addition, where he has received little assistance from a number of those who have direct knowledge of many of the relevant financial matters.

41 It was also submitted on behalf of the plaintiff that, in exercising its discretion on this application, the Court should have regard to the public interest in bringing to account those responsible for corporate collapse or for other corporate misconduct. Senior Counsel for the plaintiff referred to the decision of the English Court of Appeal in Re Manlon Trading (1995) 4 All ER 14.

42 In that case, proceedings were commenced in June 1990 by the Official Receiver under the Company Directors Disqualification Act against the defendant, a director of a company which had been wound up, seeking to disqualify him from acting as a director on the ground that he was unfit to be concerned in the management of a company. The proceedings were commenced on the last day of the two-year limitation period for such proceedings. The Official Receiver was directed to file and serve evidence by 13 May 1991 but ultimately did not do so until January 1994. The defendant applied to strike out the proceedings for want of prosecution, contending that they had caused him prejudice in that he had been prevented from taking up directorships that would otherwise have been open to him.

43 At first instance, it was held that the rules for striking out for want of prosecution in private litigation did not apply, as disqualification proceedings were sui generis, in that they were brought in the public interest for the protection of the public, and that, where a fair trial was possible, the Court should permit the case to proceed only where the public interest in obtaining a disqualification order, which diminished over time, outweighed the director's interest in being able to pursue his business affairs without fetter.

44 On appeal, it was held that the conventional approach to striking out civil proceedings for want of prosecution did apply, but was modified by the additional consideration of the need to protect the public in whose interest the disqualification proceeding was brought.

"...[these] proceedings are not brought to enforce private rights but are brought in the public interest in order to protect the public. That must be a factor militating against the striking out of such proceedings. ... However, for my part I would not accept that this was a sufficient factor to justify discarding the conventional approach [to an application to strike out for want of prosecution] altogether, as distinct from modifying it so that in disqualification proceedings that factor must be balanced against the prejudice caused to the defendant by the inordinate and inexcusable delay."

" ... the test for deciding whether this present action should be dismissed for want of prosecution is not in all respects the same as that which prevails in a dispute between citizens about their civil rights. There is a public interest that those who are unfit to be company directors should be disqualified. The action is not a contest between two adversaries either of whom is entirely at liberty to abandon his case for good or bad reason or for no reason at all."

47 The present case is not on all fours with Re Manlon Trading. In the latter, the Court was dealing with proceedings brought, not to enforce private rights at all, but in the public interest in order to protect the public. It was said that, in those circumstances, the public interest in the proceedings is also a relevant consideration.

48 These proceedings are brought to enforce private rights and are between parties who are at liberty to abandon them for any, or no, reason. They do not have the exclusive public interest element that was present in Re Manlon Trading.

49 I accept, however, the submission on behalf of the plaintiff that an action of this sort is not necessarily to be regarded in precisely the same light as proceedings by a party pursuing a purely private right of its own. I accept that, in the pursuit of claims by a receiver (or liquidator) against former directors or officers of a company, there may be a public interest element to be taken into account, for instance, because of the representative nature of the claim or because the nature of the misconduct alleged. There may be, in particular circumstances, as Senior Counsel for the plaintiff put it, a public interest in bringing to account those responsible for corporate collapses.

50 In my view, in this case it is a relevant consideration that the action is brought on behalf of a relatively large number of small investors who claim to have suffered substantial personal losses by reason of the alleged misconduct of the defendants as directors of a company. Moreover, the difficulties commonly faced by receivers of companies (and equally, or perhaps even to a greater extent, by liquidators) in pursuing claims for damages against former directors and officers of a company for alleged misconduct are well-known and are largely obvious. The difficulties in this case, referred to in the affidavit of Mr Quigley, are not atypical, and are plainly a relevant consideration. In my view, the approach taken on applications of this nature should not be such as unduly to deter a receiver, or liquidator, from reasonably pursuing such claims because of the possible or inevitable difficulties that lie in their path.

51 That is not to suggest that a plaintiff in such circumstances has carte blanche to ignore the interests of the other parties and the public interest in the proper and timely disposal of litigation, but, equally, it must not be lost sight of that particular considerations may be relevant in respect of litigation of the nature in question. Of course, such considerations are by no means decisive. They are simply factors to be weighed in the overall balance.

52 Senior Counsel for the third defendant rejected the proposition that any public interest element existed and also submitted that, in any event, it could not possibly be in the public interest for the receiver to pursue this action when it was in all probability hopeless in light of the decision in Geneva Finance Ltd (Receiver and Manager Appointed) v Resource & Industry Ltd & Hawkins [2002] WASC 121. In that case this plaintiff's claim against, among others, the current third defendant was dismissed. It was submitted by Senior Counsel for the third defendant that the issues in that case were in all material respects the same as in this case. It was also contended that in the light of that case there were no real prospects that the receiver would obtain litigation funding for this action.

53 Those are, however, matters upon which I consider I am not in a position, on the material before me, to reach any firm view and that it would be inappropriate to endeavour to do so.

54 Turning then to the question of prejudice, in his affidavit the third defendant says that prejudice arises, in essence, because his career as a businessman, accountant, company director and merchant banker depends upon his good name and character. He says that, although to date his role as a director has been mainly limited to businesses in which he has had a direct interest, he has long harboured an ambition to become a director of public companies. He believes that there will be little, if any, chance of being offered such a position while this litigation hangs over him. The third defendant says that the banking and financial community in Perth is small and he is still asked about the current state of this litigation, his involvement in the affairs of the plaintiff having received a good deal of publicity over the years.

55 The prejudice relied upon by the third defendant is, therefore, of a very general kind. That is not to say that such prejudice is not an important consideration. Plainly it is, particularly where the claim reflects on the probity or competence of an individual: Bishopsgate Insurance Australia Limited (In Liq) v Deloitte Haskins & Sells (supra) at 34; Hughes v Gale (1995) 14 WAR 434 at 450.

56 However, in weighing up the competing factors on this application, it is relevant that the third defendant does not point to any specific prejudice, nor any grounds upon which it is said that the delay in the proceedings would prevent a fair trial of the action. That is not surprising, in view of the various examinations conducted by the ASC, the fact that the third defendant has filed a defence in this action and has presumably given instructions to his solicitors to enable that to be prepared, and where there is no suggestion that the documentary evidence is not still readily available. There is no contention that the third defendant is suffering, or is likely to suffer, adverse financial consequences as a result of the delay.

57 I should also note that, on the evidence before me, it appears that until December 2002 the third defendant made no complaint about delay, nor sought to avail himself of any of the procedures open to him under the Rules of Court to require the plaintiff to pursue the matter more assiduously. Senior Counsel for the third defendant submitted that there was no obligation on the third defendant to do so and that he was entitled to "let sleeping dogs lie". That may be true, but where a defendant takes that course, he can hardly complain if it is inferred that that state of repose has hitherto suited him well enough and if complaints of ongoing prejudice of a general nature do not weigh quite so heavily in the balance.

58 The plaintiff also says that the action should not be struck out because the limitation period for the cause of action against the third defendant has not expired. That is because a claim under s 556 of the Companies (Western Australia) Code is an action for debt upon a specialty, the limitation period for which is 20 years: Limitation Act 1935 (WA), s 38(1)(e)(i). The defendant conceded, for the purposes of this application, that that was the applicable limitation period.

59 The plaintiff argued that the fact the limitation period has not expired is of itself a compelling reason not to dismiss the action: Birkett v James op cit at 322; Lewandowski v Lovell op cit at 132 - 3. It was submitted that to strike out the proceedings in these circumstances would serve only to aggravate any prejudice to the third defendant and would not be appropriate: Birkett v James op cit per Lord Diplock at 321 - 322, Lord Salmon at 328. Fresh proceedings could be brought by the plaintiff. Even if it were found that the plaintiff had been guilty of contumelious conduct in this action, that of itself would not justify the Court in striking out or staying a fresh action brought on the same cause of action: Birkett v James op cit per Lord Salmon at 328.

60 It was contended by the third defendant that there was no evidence that, if the action were struck out, a fresh action would be commenced. I accept, however, the submission on behalf of the plaintiff that, although there is no direct statement to that effect in evidence, the proper inference is that that would be the result.

61 In any event, if the action were struck out at this stage, when the prospect of fresh proceedings was still on the cards, at best the third defendant would be left in a state of uncertainty about his position until the limitation period expired. The sword of Damocles, referred to by Lord Denning in Biss v Lambeth, Southwark & Lewisham Area Health Authority [1978] 2 All ER 125, would remain, now hanging by an invisible thread.

62 In my view, there has been inordinate delay in the prosecution of this action, but I am not persuaded that, in the circumstances of this case, it is inexcusable, much less that it amounts to contumelious conduct. In any event, I consider the fact that the limitation period has not yet expired is decisive. No good purpose would be served by striking out an action where fresh proceedings, making the same claims, could be commenced the following day, or, indeed, at any time within the next seven years or so. That would not provide the third defendant with any certainty or finality. In those circumstances, it is more appropriate that this action be case managed in a way that minimises, so far as possible, the inconvenience to all the parties and ensures that it is determined as soon as practicable.

63 In that connection, Senior Counsel for the plaintiff offered an undertaking on behalf of the receiver that, by 30 June 2003, Mr Quigley will either make an application to stay the action, or he will make an application for programming orders to take the matter to trial. That, in my view, is an appropriate course.

64 I would dismiss the application. I will hear the parties on costs.