Solicitors:
Taylor & Whitty Solicitors (Applicant)
Colin Biggers & Paisley Lawyers (Respondent)
Patane Lawyers (DC - Respondent)
File Number(s): 2015/214720
[2]
EX TEMPORE Judgment
The plaintiff moves the Court by motion on notice filed on 13 December 2016 to have the proceedings between the two parties, currently before the District Court, transferred to this Court and heard concurrently with the proceedings between the parties in this Court. The basis for the motion is that the proceedings before this Court are already on foot, and the two sets of proceedings are based on the same facts and circumstances.
The plaintiff seeks the following orders:
1. Under s 67 of the Civil Procedure Act 2005, matter 2016/199969 in the District Court of New South Wales be stayed pending transfer to the Supreme Court of New South Wales;
2. Under s 140 of the Civil Procedure Act 2005, matter 2016/199969 in the District Court of New South Wales be transferred to the Supreme Court of New South Wales;
3. That matter 2016/199969 be heard concurrently with matter 2015/214720 in the Supreme Court of New South Wales, with evidence in the one being evidence in the other;
4. Under r 6.20 of the Uniform Civil Procedure Rules 2005 and s 64 Civil Procedure Act 2005, Sylvia Lando be joined as a plaintiff to matter 2015/214720;
5. The defendant pay the plaintiff's costs of the motion.
The facts of the Supreme Court proceedings, as outlined in the Statement of Claim, where Mr Lando is the plaintiff and the defendant is Rawlinson and Brown ("R&B"), is for an alleged breach of contract, negligence and misleading and deceptive conduct, arising from agronomy advice by an employee of R&B recommending the purchase and use of a specific chemical mix to the Lando family for their crops. Mr Lando applied the chemical mix, made up from Achieve WG Precept Selective and Lontrel, to the crops between 8 and 12 July 2014. The agreement between the plaintiff and defendant was partly oral and partly implied, for the provision of agronomy advice relating to the crops that the plaintiff was growing.
According to Mr Lando, within approximately 4 days of applying the chemical mixture to the crop, the leaves began to turn yellow. Within 8 days, the leaves of the crops turned yellow-brown in colour. The particulars of the damage alleged need not be explored for the purposes of the present motion. The amount claimed by Mr Lando is $904, 584.
The proceedings in the District Court were commenced by way of Statement of Claim filed on 1 July 2016 concerning a claim for goods sold and delivered plus interest. R&B claims money owed to them by Mr Lando under a number of agreements for the provision of goods. The first agreement is referred to as the "Merchandise Credit Agreement" entered on approximately 20 October 2011. The second agreement is known as the "Crop Finance Agreement" on 27 April 2013 in which goods were supplied on credit to the Landos by R&B. The third agreement, referred to as the "Guarantee" for Crop Finance, was entered into on or about 27 April 2013.
This motion is brought under s140 of the Civil Procedure Act 2005 ("the Act"), whereby the Court may order that proceedings in the District Court be transferred to the Supreme Court, either on its own motion or on application by a party to the proceedings before the District Court.
Rule 28.5 Uniform Civil Procedure Rules 2005 ("UCPR") applies, providing the circumstances in which proceedings may be consolidated where it appears to the Court;
1. that they involve a common question, or
2. that the rights to relief claimed in them are in respect of, or arise out of the same transaction or a series of transactions, or
3. that for some other reason it is desirable to make an order under this rule.
The applicant submits that the proceedings should be amalgamated due to the premise that the claim in tort made by Mr Lando is to be considered an equitable set-off in respect of the claim for liquidated damages made by R&B: Roadshow Entertainment Pty Limited v CAN 053 006 269 (1997) 42 NSWLR 462. The applicant submits that the test for equitable set-off is whether the contrary liabilities are sufficiently closely connected that it would be inequitable for the plaintiff not to make an allowance for the defendant's claim.
The respondent submits that, in order for the negligence claim to be a set-off to the contract proceeding, it "must essentially be bound up with and go to the root of, challenge, call in question, or impeach the title of the claimant": HP Mercentile Pty Ltd v Dierickx (2013) 306 ALR 53; [2013] NSWCA 479 at [136].
The circumstances in which the Court can order that a matter is brought together with another matter before another Court are outlined within UCPR r 28.5. It has been submitted by both respondents to this motion that the two proceedings do not arise from common transactions and do not have common questions. The respondents maintain that there is no commonality of goods in respect of the two proceedings, despite the consideration that there remains three contracts under which the transactions have taken place, all of which relate to common parties.
Further, the respondents submit that the transactions, or agreements, on which the two proceedings are based, are different. The respondents submit that the proceedings in the District Court are based upon written agreements in respect of delivery and payment of goods, whereas the proceedings in the Supreme Court are based upon an oral agreement for the provision of advice.
Although it might be said that materials forming the claim in the District Court could be used on the crops the subject of the Supreme Court claim, it seems as though those materials were purchased at different points in time, namely April and June 2014 respectively. However, the difference in time occurs only because the respondent has artificially confined the goods for which payment is claimed to exclude the provision of the particular goods that were recommended in the advice.
Ultimately, the Court may exercise its discretion to transfer the District Court proceedings, if it were to consider that it is desirable in some way that the matters be conducted at the same time or contiguously.
The Court must consider, under s 56 of the Act, the just, quick and cheap resolution of the real matters in dispute between the parties. A consideration therefore is the current status of both proceedings. According to the respondents, the Supreme Court proceedings are ready to take a hearing date next month, that is, April. The District Court proceedings have a timetable for the service of evidence, the first date of which is this coming Friday (as at the time this matter was heard).
Despite the contention that the materials the subject of each proceedings are largely agricultural in nature and involve the same parties, it cannot be said that it inevitably flows that the two proceedings involve common questions, or that the rights to relief arise from the same transaction or series of transactions. The nature of the claims is, in part, at least, different, and the readiness status of the proceedings is also different.
Nevertheless, at the root of the two proceedings is the relationship between the two sets of parties, in contract and otherwise. The advice caused the purchase of goods with which (at least originally) the District Court proceedings were concerned. Further, the history of the relationship and the duty of care arising therefrom will necessarily be the same.
While there are differences in the nature of the claim and the transactions on which they are based, it is in the interests of justice, expedition and less expensive if the matters are heard, in some way, together or contiguously.
The Applicant, in prayer 4 of the motion, seeks to join Ms Sylvia Lando to the proceedings. This is not opposed. An Affidavit of Sylvia Lando sworn 12 December 2016 provides Sylvia Lando's consent to be joined. The Court grants the order sought, as a proper plaintiff to the proceedings because of the business partnership between Sylvia Lando and the plaintiff herein, which carries on the business of farming to which both proceedings relate.
For the foregoing reasons, the Court makes the following orders:
1. Motion granted;
2. The proceedings in the District Court, between Rawlinson & Brown and Mr Lando, being proceedings number 2016/199969, be transferred to the Supreme Court;
3. Ms Sylvia Lando is joined as a plaintiff to both proceedings;
4. Both proceedings be listed before the Registrar on Monday 3 April for directions to ensure that both proceedings are ready at the same time and expeditiously;
5. Costs be costs in the cause;
6. The parties have liberty to approach for any different or special order for costs.
[3]
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Decision last updated: 31 March 2017