8 Counsel for St George relied upon Rule 59.01 of the Supreme Court (General Civil Procedure) Rules 1996, and submitted that, if necessary, an amendment to make the claim ought to be permitted, even at this late stage.
9 The clause relied upon in paragraph 3 of the certificate is a clause in standard terms - 07/2001 version - which are attached to the letter of offer dated 21 November 2001. This letter and these terms are in evidence as part of exhibit P1. The clause provides that a certificate is "sufficient evidence of the matter or amount, unless it is proved to be incorrect".
10 The other letters of offer referred to in the certificate are not in evidence and I do not believe a letter of 8 August 2001 which might properly be described as an "offer of facility" is in the court book. The standard terms attached to the 15 June 2001 letter are different to the 07/2001 version referred to in the certificate, although the particular provision concerning certificates is the same. Yet a further different version of the standard terms is attached to the 15 June 2000 letter, and the term there is different in that it purports to render the certificate conclusive "except in the case of manifest error".
11 The proposed certificate does not purport to rely on the certificate provisions in the guarantees. Those provisions are also different to the standard terms 07/2001 version, in that they purport to be conclusive "in the absence of manifest error".
12 I do not consider it to be fair to permit St George to reopen its case now in order to prove the quantum of its debt, or to give St George relief relying upon Rule 59.01 of the Supreme Court (General Civil Procedure) Rules 1996 which St George has not claimed. I reach this conclusion for the following reasons.
13 First, there is not, and has never been, in the proceeding a claim by St George to recover a money sum on the debt from the guarantors.
14 Secondly, there are uncertainties raised by the evidence foreshadowed if I permit St George to seek to prove the quantum of the debt. There is a distinct possibility, it seems to me, that the matter will become protracted and perhaps complex, thereby delaying the final disposition of this already protracted proceeding.
15 Thirdly, the undertaking concerning Anshun addresses a concern I had in that respect. I think it is most unlikely that any Anshun point would have been open, but argument might have complicated any subsequent proceeding.
16 Fourthly, after realisation of the securities, it may never be necessary for St George to seek a judgment for the debt. Further, there are peculiar complications referable to the position of Dr Kermani which will not be eliminated until the securities are realised.
17 Accordingly, I will not make order A in St George's proposal, and I will make orders B, C, D and E.
Costs
18 Each of the guarantees provides that the guarantor indemnifies St George against all costs it incurs in exercising, or attempting to exercise, any power or right in relation to the recovery of "guaranteed money". On the basis of this contractual indemnity, St George seeks indemnity costs of the proceeding. St George's counsel rely upon a decision of mine in Reading Entertainment Australia Pty Ltd v Burstone Victoria Pty Ltd (No 2).[3]
19 Counsel for the guarantors did not dispute the principles I referred to in Reading, but submitted that such an order ought not to be made when no allegation of the provision relied upon had been pleaded, and no claim for indemnity costs had been included in the prayer for relief. They relied upon a recent New South Wales Court of Appeal decision to this effect in Kyabram Property Investments Pty Ltd v Murray.[4]
20 The position in Reading is distinguishable from the position here in two respects. First, the contractual provisions in that case specifically and expressly dealt with legal costs.[5] Secondly, no point was taken there as to any failure to plead or alert the other side to the foreshadowed claim for indemnity costs, and although no claim for indemnity costs was made in the writ in that proceeding, a claim was made by Reading Entertainment Australia Pty Ltd, as lender, for a declaration that the borrower and the guarantors were liable to indemnify it.
21 I do not think an order for indemnity costs should be made here for the following reasons: