3 Meriton commenced these proceedings, seeking declarations that the amounts paid by FTAC to the Owners Corporation were paid without statutory authority, or, alternatively, were paid "in excess of their reasonable value". As I have said, at the time the proceedings were commenced, FTAC had not sought, by litigation in a court of competent jurisdiction, to enforce its claimed right of indemnity. Meriton's proceedings were in effect a pre-emptive strike.
4 In those circumstances, FTAC sought, by notice of motion, an order "that the proceedings be dismissed generally". That application was heard by Einstein J on 13 November 2009. His Honour gave judgment on 17 November 2009 ([2009] NSWSC 1238). His Honour ordered that the proceedings "be stayed until the occasion when the defendant commences recovery proceedings against the plaintiff". No such recovery proceedings have as yet been commenced.
5 No application was made for leave to appeal from his Honour's order (which, I interpolate, was not an order sought by either party). Nor has Meriton (or, for that matter, FTAC) sought to re-argue the matter before his Honour. Nonetheless, by notice of motion filed on 12 April 2010, Meriton seeks orders including that the stay "be set aside" and that it have leave to amend its summons and technology and construction list statement. FTAC has replied to that notice of motion by its own notice of motion filed on 19 May 2010 seeking, among other things, an order that Meriton's notice of motion be dismissed.
6 Mr D G Russell of Queen's Counsel, who appeared with Ms M Allars of counsel for Meriton, submitted that it was possible to deal with his client's notice of motion without seeking to cavil with either the reasons of or the orders made by Einstein J. Mr M G Christie of Senior Counsel, who appeared with Mr B D Kaplan of counsel for FTAC, submitted that if the matter were to be re-agitated, this should be done either before Einstein J or in the Court of Appeal. However, Mr Christie's primary position was simply that his Honour's orders should remain in place, so that Meriton's proceedings would remain stayed until (if at all) FTAC sought to enforce its claimed right of indemnity.
7 For reasons that do not require elaboration, the current notices of motions were fixed for hearing before me. At the outset of the hearing, I raised with Mr Russell the problem that, in effect, his client was asking one judge of first instance to review an interlocutory decision of another judge of first instance, in circumstances where, arguably, such a review had not been within the contemplation of the judge who made the orders. (I say "arguably" because Mr Russell submitted, for reasons that I will come to in a moment, that the reasons of Einstein J did contemplate that his Honour's orders could be revisited before, if at all, FTAC commenced proceedings for indemnity.)
8 One of the difficulties in my dealing with the matter is that, as I have said, the order made by Einstein J was not one for which either party had contended. His Honour's reasons for making that order were, in substance, that: