Westfield Management Limited & Ors v Direct Factory Outlets Homebush Pty Limited & Ors

FIRST RESPONDENT Mr S D Rares SC with Mr R P L Lancaster SOLICITOR Gilbert and Tobin LEGAL REPRESENTATIVES: SECOND RESPONDENT Mr C J Leggat with Mr Mr T To SOLICITOR Watkins Tapsell

FOURTH RESPONDENT Mr D J Hammerschlag SC with Mr J E Robson SOLICITOR Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT HER HONOUR:

1. The Applicants commenced Class 4 proceedings against five Respondents on 7 November 2002. The proceedings against the Respondents have been separated into two hearings, with the hearing against the First, Second and Fourth Respondents to be determined first. It is this hearing which is the matter currently before me. The case concerns level 3 of premises in Underwood Road Homebush which operates as a factory outlets centre. The First Respondent is the head lessee of the premises at level 3 and the Second and Fourth Respondents are two out of the approximately seventy tenants which occupy level 3.

2. On the first day of the hearing the First, Second and Fourth Respondents applied, pursuant to Pt 13 r 5 of the Supreme Court Rules (which apply in the Land and Environment Court by virtue of Pt 6 r 1 of the Land and Environment Court Rules), for the summary dismissal of these proceedings or alternatively, for the striking out of the Further Amended Application and the Further Amended Points of Claim ("the pleadings") without leave to replead because they fail to disclose a cause of action (Pt 15 r 5(1)(a) of the Supreme Court Rules) and fail to join the necessary or appropriate parties to the proceedings. The First Respondent also alleges that the pleadings are frivolous and vexatious (Pt 15 r 5(1)(b) of the Supreme Court Rules). It is useful and necessary to set out a brief history of events which have occurred in the hearing to date in order to understand all the relevant arguments.

3. Thursday 17 June 2004 (i) The Applicants opened their case on the first day of hearing, Thursday 17 June. The Applicants' opening made it clear that the Applicants' case is substantially based on the argument that condition 11 of the development consent has been breached by the Respondents.

(ii) The First Respondent made an oral application for a Pt 31 r 2 order under the Supreme Court Rules to be made as a means of regularising these proceedings procedurally, given that this is a separate hearing from the First, Third and Fifth Respondents, which Respondents are also referred to in the pleadings relied on by the Applicants.

(iii) The Fourth Respondent made an oral submission to the effect that if condition 11 was interpreted a certain way the Applicants had no case. The Applicants made submissions in response to that submission and I reserved my decision on that issue. (iv) The First, Second and Fourth Respondents made oral applications seeking the dismissal of the proceedings and/or the striking out of the pleadings.

4. Friday 18 June 2004 (i) The Fourth Respondent presented a written submission in support of its motion to strike out/dismiss the proceedings. (ii) The proceedings were adjourned until Monday 21 June to give the Applicants time to consider their response to the Respondents' motions for dismissal/strike out and to draft a Pt 31 r 2 order.

5. Monday 21 June 2004 (i) The Applicants handed up possible questions to be answered pursuant to an order made under Pt 31 r 2 of the Supreme Court Rules ("the Pt 3 r 2 document"). Annexure A contained a number of prayers for relief which the Applicants stated would be sought instead of the relief identified in the Amended Class 4 Application, as referred to in par 56 of the Further Amended Points of Claim.

(ii) The Applicants presented their arguments in opposition to the Respondents' application for a strike out or dismissal of the Applicants' proceedings for most of the day. The Fourth Respondent put matters in reply briefly on Monday. 6. Tuesday 22 June 2004 (i) The First and Second Respondents put submissions in reply to the Applicants' submissions on the motion for strike out/dismissal. The Applicants responded on several new matters raised in the Respondents' reply submissions.

7. Wednesday 23 June 2004 (i) The three Respondents filed in Court their Notice of Motion setting out the grounds on which the strike out/dismissal application had been made in order to regularise their applications under Pt 9 r 4(1) of the Land and Environment Court rules. Motion for strike out/dismissal by the Respondents First Respondent
8. The First Respondent raises the following three grounds in support of its application for summarily dismissal and/or the striking out of the Applicants' pleadings: (i) No reasonable cause of action is disclosed; (ii) The proceedings are frivolous or vexatious; and (iii) The Applicants have not joined the necessary and/or appropriate parties to the proceedings.

9. The Applicants argued on Wednesday 23 June 2004, when the First Respondent filed its Notice of Motion in Court, that they had not had time to consider the First Respondent's submission that the Applicants' case as pleaded is frivolous or vexatious (Pt 15 r 3(1)(b) of the Supreme Court Rules). The bulk of argument in this application was directed to Pt 15 r 3(1)(a) of the Supreme Court Rules, being the no cause of action ground. I do not presently need to consider whether the Applicants' submission in this regard is valid or not if I deal with the matter conclusively in relation to Pt 15 r 3(1)(a) of the Supreme Court Rules, which I intend to do for the reasons set out below. Accordingly, I do not intend to consider whether the Applicants' pleadings are frivolous or vexatious.

10. In support of ground 1, no reasonable cause of action disclosed, the First Respondent made the following submissions: (a) The Applicants have failed to disclose any reasonable cause of action, as disclosed in either their pleadings or their oral submissions, for alleging a breach by the First Respondent, as lessor, of condition 11 of the development consent. (b) The Applicants have not pleaded the construction of condition 11 which they now seek to argue. (c) The construction of condition 11 which the Applicants put forward in their oral submissions is untenable. Condition 11 relates to the premises as a whole and not to each of the leased premises within the centre. Such a construction is not reasonably arguable in the face of the wording of condition 11, which plainly relates to the whole of the premises rather than any subset of the premises. Further, the construction put forward by the Applicants does not disclose any test which could be applied for the purpose of determining whether condition 11 has been breached. (d) In light of the decision of the Court of Appeal in Wilkie v Blacktown City Council (2992) 121 LGERA 444, the Points of Claim disclose no case of breach against the First Respondent as lessor by reason of the actions taken by persons leasing premises from it. (e) In relation to ground 3, the declaration sought by the Applicants at declaration 2 of Annexure A to its Pt 34 document relate to the whole of the premises and not just to such parts of them as are occupied by the Second and Fourth Respondents. Given this, the relief sought is either untenable or would first require the joinder of all the tenants. The Court cannot or would not make such a declaration without having all the affected tenants before the Court. (f) Further, the order sought by the Applicant at order 3 of Annexure A to its Pt 3 r 2 document would prevent the First Respondent from managing the whole of its premises unless it imposed on all tenants a requirement to use the centre in accordance with condition 11 as it is construed by the Applicants. The Court cannot or would not make such an order without having all the affected tenants before the Court.

Second Respondent 11. The Second Respondent raises two of the same grounds as the First Respondent in support of its application for summary dismissal and/or the striking out of the Applicants' pleadings, namely: (1) No reasonable cause of action is disclosed; and (2) The Applicants have not joined the necessary and/or appropriate parties to the proceedings.

12. In support of the first ground, no reasonable cause of action, raised by the Second Respondent, the Second Respondent made the following submissions: (a) The Applicants' pleadings as against the Second Respondent assert, in par 9, 10 and 11 of its Points of Claim, that the Second Respondent "is using and has at all material times been using the premises without development consent". The pleadings fail to identify how it is that the Second Respondent, who only occupies a small portion of the premises, is using the premises as a whole. This contention that the Second Respondent is using the whole of the premises in breach of the consent is repeated in the revised forms of relief attached as Annexure A to the Pt 3 r 2 document which the Applicants handed up to the Court and which the Applicants have indicated is intended to replace to relief sought in its Application. (b) Even if the Applicants amended the pleadings to indicate how it was that the Second Respondent's use of the part of the premises it leases constitutes use of the premises as a whole, the Applicants' case could never succeed in this regard as the use of the two tenancies within the premises could never establish the primary function of the use of the centre as a whole for the purposes of condition 11 of the development consent. (c) The Applicants suggested in oral submissions that "namely as a shop" should be read as being included in par 7 and 9 of the Points of Claim as against the Second Respondent. Even if the Applicants sought to amend the pleadings in this manner it still does not reveal and, given that shops are both permissible and impermissible under the relevant Ordinance, the pleadings are required to reveal, how it is pleaded that the premises occupied by the Second Respondent are a prohibited shop. While it emerged during the Applicants' oral submissions that it relies on what it says is a prohibition on "a shop" contained in sentence 2 of condition 11 and that it argues that the word "shop" in condition 11 should be interpreted as being defined as it is in the Ordinance, this is not pleaded and the Applicants have not sought to amend their pleadings in this manner. Accordingly, the pleading does not provide the link between the sales which the Applicants claim have been made by the Second Respondent and the necessary material characteristics which the Applicants say an impermissible shop would need to have, in order for there to be a breach by the Second Respondent of condition 11. (d) While the Applicants argue that the Second Respondent was put on notice by the particulars it received in response to a request made for same by the Second Respondent as to the manner in which the Applicants argue cl 11 has been breached by the Second Respondent, the particulars provided by the Applicants did not link the shop point, in terms of the definition contained in the Ordinance, with the alleged breach of condition 11 contained in par 57 of the Points of Claim.

13. In support of the second ground raised by the Second Respondent, the Second Respondent made the following submissions: The Applicants seek declaratory relief as to the illegality of the use of the whole of the premises. Such a declaration regarding the use of the development consent which operates in rem will affect the interests of third parties, being the remaining tenants of the premises, who are not parties to these proceedings and are not before the Court, in that: (a) it could form the basis of enforcement actions which may later be taken against the presently unrepresented tenants; and (b) most commercial leases contain a clause requiring the lessee to comply with all applicable laws. A declaration that the premises as a whole are not being used in contravention of a condition of development consent would put the unrepresented tenants in breach of their respective leases and expose them to a forfeiture action by their lessor. Fourth Respondent
14. The Fourth Respondent raises the same two grounds as the First and Second Respondents in support of its application for summary dismissal and/or the striking out of the Applicants' pleadings: (i) The Applicants' claim discloses no reasonable cause of action; and (ii) There is no jurisdiction given the absence of necessary parties.

15. In support of the grounds raised by the Fourth Respondent, the Fourth Respondent made the following submissions: (i) The Applicants' pleadings disclose no cause of action in that they do not disclose the link between the conduct alleged, namely, selling stock: (a) not being surplus stock, out of season, factory seconds and the like; (b) other than at a discount; and any breach of condition 11. Further, the pleadings do not disclose why, as is stated to be the case in the pleadings, a single instance of the conduct cited above is sufficient to ground a breach of condition 11. Given the fact that condition 11 uses the term " primary function " in relation to this conduct, this cannot be a valid construction of condition 11. Thus the Fourth Respondent argues that no cause of action is disclosed.

(ii) Further the Fourth Respondent argues that the pleadings are embarrassing in that the pleadings do not make what the Fourth Respondent argues are two essential averments: (a) It does not aver, articulate or quantify the conduct alleged to constitute the impermissible function; and (b) On its face it asserts that each and every sale not at a discount or not of surplus stock etc would give rise to a breach. Yet that has been eschewed by the Applicant in its opening. (iii) Further, the Fourth Respondent argues that the Applicants' opening went outside the Applicants' pleadings by indicating that the Applicants would also be relying on various other indicia other than the mere sale of non discounted goods not of a description included in sentence 1 of condition 11 to establish that the Respondents have breached condition 11. (iv) The defects in the Applicants' pleadings cannot be remedied by amendment as: (a) the Applicants have only chosen two out of around 70 tenancies in the premises on which it relies to establish that the dominant purpose of the premises is not that required by condition 11 of the consent; and (b) the Fourth Respondent has recently amended its business practices within its leased premises and no evidence has been collated by the Applicants in relation to these changed business practices thus amendment is fruitless. Further, each of the Respondents also relied upon the submissions made by each other Respondent. Applicants' arguments in reply 16. The Applicants rely on General Steel Industries Inc v Commissioner of Railways (NSW) & Ors (1964) 112 CLR 125 to argue that, before making an order to dismiss or strike out, the Respondents' pleadings must show that the process impugned is so obviously untenable that it cannot possibly succeed. The Applicants argued that the Points of Claim, as drafted, made it clear that what is alleged against the Respondents is a breach of the Environmental Planning and Assessment Act 1979 (the EP&A Act), as stated in par 57 of the Points of Claim, namely, the assertion that "… in the circumstances pleaded above, each of the Respondents is carrying on development in breach of condition 11 of development consent no. 9900/377 granted on 30 May 2000 with respect to the premises" and that this pleading is sufficient to give rise to a cause of action.

17. The Applicants further articulated in oral submissions the manner in which they contend that condition 11 of the development consent has been breached. The Applicants stated that the breach of condition 11 alleged is that the Second and Fourth Respondents are operating what amounts to a shop, being the sale of goods at retail price (based on the definition of shop in the Ordinance), as a separate and distinct use to that occurring in the same premises, being the discounted sale of goods of a type identified in sentence 1 of condition 11, and that the use as a shop is prohibited by sentence 2 of condition 11. The Applicants argued that, given the above construction of condition 11 as prohibiting any sale of goods by retail, any such sales by retail are sufficient to characterise the premises so selling as a shop: (a) the allegation made in the pleadings that the Second and Fourth Respondents have engaged in the sale of goods not being discounted and not being of a class identified in sentence 1 of condition 11 is sufficient to ground breach of condition by the Second and Fourth Respondents; and (b) the allegations pleaded against the First Respondent relating to its position as head lessee of the Second and Fourth Respondents and its promotion, management and control of the premises as a whole, is sufficient to ground the Applicants' case that the First Respondent has also breached condition 11 by being involved or participating in or suffering or permitting or failing to exercise its powers to restrain or prevent the Second and Fourth Respondents' breach of condition 11.

18. The Applicants also argued that Wilkie does not have the effect that the Applicants have no case against the First Respondent, as Wilkie does not stand for the proposition that an applicant has no right to seek relief against a lessor (or in this case, a head lessee) in circumstances where the lessor has, in some way, participated in or had knowledge of the activity which is sought to be impugned.

Finding on strike out/dismissal motion 19. As should be clear from the brief history set out above, I have heard extensive argument over four days, commencing last Thursday, as to the nature of the Applicants' case in several contexts. The Applicants presented their case in their opening on the first day, addressed an important part of their case in replying to the Fourth Respondent's submissions on the interpretation of condition 11 on the first day, and in submissions opposing the making of the summary dismissal or strike-out application on Monday 21 June 2004. I consider that the articulation of the Applicants' case has changed over that period and that the substance of what the Applicants are really seeking to argue in their case was only made somewhat clearer in the Applicants' submissions in relation to the Respondents' strike out application on Monday 21 June 2004. Further, I accept the Respondents' submissions that that final articulation is not one which is reflected in the Further Amended Points of Claim.

(i) Condition 11 20. The principal breach of the EP&A Act which the Applicants seek to plead against all three Respondents is a breach of condition 11 of the development consent issued by Strathfield Council for the use of level 3 at Underwood Road as a factory outlets centre. That allegation appears at par 57 of the Further Amended Points of Claim and states as follows: Alternatively, in the circumstances pleaded above, each of the Respondents is carrying on development in breach of condition 11 of development consent no. 9900/377 granted on 30 May 2000 with respect to the Premises.

Condition 11 of the development consent provides as follows: The use of the premises shall comply at all times with the following definition: "factory outlets centre" mean a building or place the primary function of which is used for the discounted sale of surplus stock, out-of-season (previously offered for sale on a retail basis), factory seconds and the like, at one or more outlets. It does not include a shop, supermarket, hypermarket, discount department store, a building or place used for personal services (including hairdressers, barbers, beauty parlours and the like), a travel or real estate agency, a bank, an insurance or financial institution, or other commercial premises, a newsagency, a bulk grocery store, a building or place at which food items are sold or other activities not otherwise associated with or ancillary to the primary function of the building or place. It may include automatic teller machines.

21. I have now heard extensive argument as to what condition 11 means from all the parties but at this stage of the proceedings it is not self-evident to me which interpretation is to be preferred. Because of the way arguments about the meaning of condition 11 have evolved over the course of the hearing, it is difficult to precisely define all the relevant submissions made on this issue. As currently presented they are not in a readily digestible form for my consideration. For example, the arguments put by the Applicants in answer to the Fourth Respondent's submission on the interpretation of condition 11 on the first day of the hearing, do not seem to accord with arguments put in relation to the meaning of condition 11 on Monday 21 June 2004 in response to the Respondents' strike out/dismissal motion.

22. What is clear is that even if I did find for what I now understand to be the Applicants' interpretation of condition 11, the argument put by the Applicants in relation to condition 11 is simply not reflected in the Further Amended Points of Claim despite this being the central tenet of the legal case which the Applicants seek to mount against the First, Second and Fourth Respondents. A core issue which arises from the application of Condition 11 on the Applicants' case as I now understand it, is how the terms "primary function", '"factory outlets centre" and "shop" are to operate within the terms of the condition and, possibly, the Strathfield Planning Scheme Ordinance.
23. I do not agree with the Applicants' submission that the current pleadings adequately make clear through par 57, which refers to a breach of condition 11 by reference to all the previous paragraphs (1 - 56), the basis on which the Applicants seek to argue their case. Paragraphs 1 - 56 simply do not reflect the case as presented orally by the Applicants. There is, for example, simply no reference in the current pleadings to "primary function" or "shop". I am still not entirely clear on the legal argument the Applicants seek to rely on in distinguishing between a shop and a factory outlet, or what transpires if both activities take place in the same tenancy given the provisions of condition 11. It is essential that these matters are resolved in order to enable the Court to determine the legal framework in which the material facts are to be considered.

Given this, it does not appear to me that simple amendment can overcome the inadequacy of the current pleadings and, in any event, the Applicants have not sought to file amended pleadings. While I have been directed to the correspondence between the parties regarding the particulars sought and provided (exhibits C, D and 1B) which correspondence apparently attempted to clarify these matters, it does not appear to me that they do in fact achieve the clarification sought and, even if they did, I am of the view that there should have been an amendment of the pleadings to reflect these matters.

While I accept the Applicants' argument that this is not a court of strict pleading, I am of the view that it is nevertheless expected and clearly desirable that the Applicants' case be sufficiently pleaded to make clear the basis on which the case is to proceed. Further, if the case were to proceed on the basis of the present Points of Claim as opposed to the oral submissions put by the Applicants I would be unable to assess the relevance of the evidence to be presented. This is one of the key reasons why the Applicants must articulate their case better in writing. The reference in General Steel at 129 that to allow pleadings "to stand would involve useless expense" applies in this context.

As already stated, I am not able to resolve finally what condition 11 means and it is not presently necessary that I do so. It is necessary in my view that par 4, 6, 7, 8, 9, 10, 11, 29, 30, 32, 33, 34, 35, 36, 37, 55, 56 and 57 of the Further Amended Points of Claim filed by the Applicants, which paragraphs relate to the First, Second and Fourth Respondents be struck out together with the Further Amended Application and, if sought, leave be granted to file pleadings which do adequately set out the Applicants' case in relation to condition 11. Once clearly articulated in the pleadings it is hoped that the Applicants' arguments in relation to condition 11 can be more readily understood.

I do not consider the order for summary dismissal sought by the Second and Fourth Respondents is warranted at this stage of the proceedings in relation to this part of the case as I consider that the Applicants' case as submitted orally against the Second and Fourth Respondents is not manifestly hopeless if it can be adequately pleaded.

There are two matters which are particularly relevant to the case against the First Respondent which are additional to the matters already discussed.

(ii) Failure to join other parties namely the other tenants on level 3 29. The First Respondent argues that the case against it where declarations and orders are sought in relation to the whole of level 3 are not properly constituted because the interests of parties not before the Court, namely the other 66 tenants of level 3 who are not parties, will necessarily be affected by such orders. They are accordingly proper parties who should be joined.

30. The Respondents submit this is a ground put forward in support of their application under Pt 13 r 5(1)(a) that the Applicants have no cause of action. This was not specifically articulated by the Respondents until Notices of Motion were filed on Wednesday 23 June 2004 to regularise the matters put to the Court earlier in accordance with Pt 9 r 4(1) of the Land and Environment Court Rules, although I think it was earlier clearly inferred from the arguments made by the Respondents. The Applicants argued that it had not been made clear to them that this was a ground relied on in relation to Pt 13 r 5 in support of a dismissal or strike out of the Applicants' claim. If I do not dismiss the Applicants' claim on this basis but rather strike out with leave to replead, there is no particular prejudice to the Applicants whether this ground is considered under Pt 13 r 5 or as a separate matter.

31. The Applicants argued it was not necessary to join the other tenants because no declaration or injunction is sought against the other tenants not presently parties. The remedy of injunction only operates against the party or parties against whom it is directed.
32. Those submissions ignore the reality that, if the declarations and orders which relate to the whole of the centre sought in Annexure A to the Pt 31 r 2(a) application are granted as against the First Respondent, this must necessarily impact on the commercial interests of the other current tenants in the centre who are not parties. Prayer 3 seeks to restrain the First Respondent in its management of the centre as a whole, including its actions in relation to the future leasing or licensing of the individual tenancy areas in the centre. While prospective tenants who have not yet entered into a lease with the First Respondent cannot yet be affected, current tenants who already have a lease and occupy the centre will potentially be impacted on.

33. The difficulty is that the Applicants are seeking declarations which must impact on parties beyond these proceedings, namely other tenants of the premises, because of the necessary commercial interaction with the First Respondent. I note that it is not necessary that declarations be made before restraining orders are made, provided that there are findings made by the Court which support the orders being sought. However, this situation cannot be cured by the Applicants seeking findings which bind only the parties rather than declarations, as the injunctive orders sought in prayer 3, if made, must impact on other tenants of level 3 not currently parties. While not bound by the injunction directly, third parties may, for example, be deprived of a right which they thought they had under their lease to conduct their business a certain way. I consider that the decision of the High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 195 CLR 1 relied on by the First Respondent, is relevant to this issue. That case identifies the need to consider the rights and interests of third parties when injunctive orders are sought. If the orders sought as against the First Respondent are to be pursued then most, if not all, of the other tenants who are not presently parties will need to be joined.

34. It is not an answer to this issue for the Applicants to argue that they are not seeking any declarations or orders against those other tenants or to argue that the EP&A Act imposes no requirement that parties be joined in these circumstances. Accordingly the Applicants submission that Fastbuck$ v Dudley Pastoral Co Pty Ltd and Ors (2003) NSWCA 126, another case relied on by the First Respondent, can be distinguished is irrelevant.
35. To the extent therefore that this case seeks orders and declarations in relation to the First Respondent which apply to the whole of level 3 beyond the Second and Fourth Respondents' premises (and the Third and Fifth Respondents' premises), the case against the First Respondent is not properly constituted and must be struck out. This relates to par 1, 2, 13, 14, 15, 39, 40, 41, 56 and 57 in the Further Amended Points of Claim. The Applicants can apply to replead this ground if they choose to.

(iii) "Suffering and permitting" pleading 36. The Further Amended Points of Claim at par 5, 12, 13, 14 and 15 in relation to the Second Respondent, and par 31, 38, 39, 40 and 41 in relation to the Fourth Respondent, allege in relation to the First Respondent that it has "not exercised its rights and powers to restrain or prevent the Second/Fourth Respondents from offering and selling certain goods etc" (par 12, 38), that the First Respondent is suffering or permitting the Second/Fourth Respondents to breach the EP&A Act (par 13, 39) or in the alternative that it has "been involved in or participated in the Second/Fourth Respondents' contravention of the EP&A Act" (par 14, 40). I understand that par 12, 13, 38 and 39 are linked so that this ground is based on the First Respondent's "suffering or permitting" certain activities the Applicants allege breach condition 11. I find this articulation of the case against the First Respondent is lacking in that it does not provide two specific legal bases, based on s 124 of the EP&A Act, which may give rise to a breach of the EP&A Act by the First Respondent.

37. The First Respondent argued that the Court of Appeal in Wilkie has ruled out a pleading on the basis of "suffering and permitting" in the context of s 124 and I must say there seems considerable weight in that argument. However, I do not consider that it is appropriate that I dismiss the case against the First Respondent in relation to the conduct of the Second and Fourth Respondents at this stage before any evidence on this issue is heard, as it may be there are material factual differences between the circumstances in this case compared to those in Wilkie which will support a claim of this nature. Despite this, I do consider the paragraphs identified above need to be carefully redrawn to better articulate what the legal basis is for the allegations made against the First Respondent to the extent these relate to the activities of the Second and Fourth Respondents, and how that basis relates to s 122-124 of the EP&A Act.

38. Assuming there is an application to file fresh pleadings, there are a couple of legal issues which should be considered as preliminary issues before the proceedings go into evidence, such as the final resolution of the meaning of condition 11.
39. I note that any orders made do not relate to the whole of the pleadings because these refer to parties not before the Court, namely the Third and Fifth Respondents. The claims against them appear at par 16 - 28 and 42 - 54 of the Further Amended Points of Claim to which I have not referred in this judgment, and par 55, 56 and 57 of the Further Amended Points of Claim which I have struck out in relation to the First, Third and Fifth Respondents.
40. While on Thursday last week I required the Applicants to make an application under Pt 31 r 2 of the Supreme Court rules in an attempt to better define and separate the issues to be resolved in this hearing given the separate hearing for the First, Third and Fifth Respondents, it is not yet clear to me given the state of the pleadings what, if any, order of this type ought be made. I will therefore stand over this matter until the issue of the pleadings has been resolved on the assumption an application to file a Further Amended Points of Claim will be forthcoming from the Applicants.

41. I note the relief sought in Annexure A of the Applicants' Pt 31 r 2 application will need to necessarily reflect any differently pleaded case.

Costs 42. The Respondents have all sought their costs in relation to their respective notices of motion for strike out/dismissal. I have not yet heard argument on that issue.

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