Vesuvius Australia Pty Ltd (formerly known as Cookson Plibrico Pty Ltd) v V&M Davidovic Pty Limited (No 2) [2011] NSWSC 48 (15 February 2011)

Last Updated: 12 April 2011

Supreme Court New South Wales

Case Title:	Vesuvius Australia Pty Ltd (formerly known as Cookson Plibrico Pty Ltd) v V&M Davidovic Pty Limited (No 2)
Medium Neutral Citation:	[2011] NSWSC 48
Hearing Date(s):	8 February 2011
Decision Date:	15 February 2011
Jurisdiction:
Before:	Hallen AsJ
Decision:	The Plaintiff's notice of motion to re-open dismissed with costs.
Catchwords:	Application to re-open judgement on basis of alleged procedural unfairness and alleged misapprehension of principles of law
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:	Aktas v Westpac Banking Corporation Limited (No 2) [2010] HCA 47 Brand v Monks [2010] NSWSC 313 Dey v Victorian Railway Commissioners [1949] HCA 1 Fancourt v Mercantile Credits Ltd [1983] HCA 25 General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 Lean v Tumut River Orchard Management [2003] FCA 269 Spencer v The Commonwealth [2010] HCA 28 Theseus Exploration N.L. v Foyster [1972] HCA 41 Webster v Lampard [1993] HCA 57
Texts Cited:	Equity Doctrines & Remedies, R Meagher et al, 4th ed, LexisNexis Butterworths
Category:	Procedural and other rulings
Parties:	Vesuvius Australia Pty Ltd (formerly known as Cookson Plibrico Pty Ltd) (Plaintiff) V & M Davidovic Pty Limited (Defendant)
Representation
- Counsel:	Counsel: Mr B Coles QC; Mr P T Russell (Plaintiff) Mr S Wells (Defendant)
- Solicitors:	Solicitors: Pikes Lawyers (Plaintiff) Rosier & Partners (Defendant)
File number(s):	2010/84991
Publication Restriction:

Judgment

The Application

1. HIS HONOUR : In this matter, I delivered judgment on the Plaintiff's application for summary judgment on 11 November 2010, the citation of which is [2010] NSWSC 1171.
   
2. On 18 November 2010, the Plaintiff filed in Court a notice of motion seeking, inter alia, the following relief:

"2. An order that the hearing of the plaintiff's amended notice of motion filed 24 September 2010 and the decision of the Court in its judgment of 11 November ([2010] NSWSC 1171) be re-opened.

3. In lieu of the Court's orders indicated in the judgment, the Court makes the orders claimed in paragraphs 2, 3 and 4 of the plaintiff's amended statement of claim and sought in paragraph 1 plaintiff's amended notice of motion filed 24 September 2009, namely:

(a) a declaration that the plaintiff is entitled to be repaid the whole of the funds standing to the credit of Illawarra Credit Union Limited account number xxxxxxxx being the funds paid into that account pursuant to the provisions contained in clause 13 of the Deed of Options for Lease dated 8 October 2007 made between the plaintiff therein described as the Tenant of the one part and the defendant therein described as the Landlord of the other part;

(b) an order that within three business days of the date of this order, the defendant do all things and execute all such documents as may be necessary to procure the release of funds standing to the credit of such account and deliver such documents to the solicitors for the plaintiff; and

(c) an order that in the event the Defendant shall fail so to execute and deliver within the time specified the documents referred to in the previous paragraph, the Registrar of the Court shall sign and deliver such documents on the Defendant's behalf pursuant to section 94 of the Civil Procedure Act 2005.

4. An order that the defendant pay the plaintiff's costs of and incidental to this motion, the plaintiff's notice of motion filed 10 August 2010 and the plaintiff's amended notice of motion filed 24 September 2010.

5. Such further or other orders as this honourable Court may seem fit."

3. The notice of motion was heard by me on 8 February 2011.
   

Legal Principles

4. There was no dispute as to the principles of law that apply in determining the Plaintiff's application. Those principles were recently summarised by Ward J in Brand v Monks [2010] NSWSC 313 at [13] - [17]:

"13 In Paul Andrew Dwyer v John Maxwell Morgan [2009] NSWSC 1343 Barrett J (at [5]) outlined the principles, which his Honour observed were well settled, in relation to the exercise of the court's power to recall its judgment and to re-open its decision, by reference to what his Honour had said in Wentworth v Rogers [2002] NSWSC 921 at [9]:

It seems to me that the relevant principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision. (my emphasis)

[14] His Honour had referred to the observation of Rix LJ in Compagnie Noga d'Importation et d'Exportation SA v Abacha [2001] 3 All ER 513 , to the effect that, other than in circumstances where there is a clear error of fact or law which may be corrected without imposing on the parties the need for an appeal, it would be the antithesis of justice according to law and would subvert the appeal process for the trial judge to open up reconsideration of his or her judgment. Rix LJ said:

It is in my judgment wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable.

[15] This is of particular relevance, I note, to the current application insofar as it is said that I have misapprehended or misapplied Court of Appeal authority - a matter which would most appropriately by determined by the Court of Appeal itself (or have misapprehended facts going to the question of acquiescence).

[16] Barrett J in Wentworth (at [7]) referred to three matters which have been identified as central to the re-opening jurisdiction:

first, whether the appellant has shown that, without accident or fault on the appellant's part, he or she has not been heard on a relevant matter;

second, whether the appellant has shown an error in the court's reasoning because of a misapprehension of the facts; and

third, whether the appellant has shown an error in the court's reasoning because of some misapprehension of the relevant law

and then to the further consideration identified by Young J (as his Honour then was) in Twenty-First Australia Inc v Shade (unreported, 31 July 1998), namely the situation where the court's reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing and where an appeal to correct this would involve inevitable delay.

[17] In Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 ; (1993) 111 ALR 385 (at 387) Mason CJ said:

However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases."

5. Even more recently, the majority of the High Court in Aktas v Westpac Banking Corporation Limited (No 2) [2010] HCA 47, noted:

"5. This Court's orders have not yet been authenticated. There is no doubt that the Court has power to recall the orders made on 4 August 2010. The question is whether it should.

6. As Mason CJ rightly said in Autodesk Inc v Dyason [No 2] , the exercise of the jurisdiction to re-open a judgment and to grant a rehearing "is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard". The jurisdiction is, however, to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. That Mason CJ dissented in the result in that case does not deny the accuracy of the propositions just made."

6. Mr Wells, counsel for the Defendant, accepted that I had the power to recall, or amend, the reasons for Judgment and the orders made. The debate, at the hearing, centred on the question whether I should do so.
   

The Submissions

7. In summary, the Plaintiff's submissions were that:
   

"... the judgment has miscarried in relation to the Court's finding (the set-off finding) that it is reasonably arguable that rights under a contract (the Deed) could be set off against misleading or deceptive conduct or unconscionable conduct amounting to contravention of the Trade Practices Act: see judgment at [60], [75] and [76]. Further, in short, the plaintiff respectfully submits that it has not been heard in relation to the set-off finding and/or that finding involves a misapprehension of the law."

8. The basis of that submission was:
   

"7. The plaintiff submits that it has not been heard in relation to the asserted legal principle and the authority of Lean v Tumut River Orchard Management Ltd [2003] FCA 269 cited by the Court (see judgment at [57] and [76]) in support the (sic) set-off finding. That principle and that authority were not raised in any submissions to or argument before the Court during the hearing of the plaintiff's motion for summary relief. They were raised for the first time by the Court in the judgment and as an apparent answer to the plaintiff's submission, set out in paragraph 24 of its Outline of Submissions dated 24 September 2010, to the effect that set-off had no role to play where, as in this case, the plaintiff makes no monetary claim or demand against the defendant but rather seeks declaratory and injunctive relief. In fact, the defendant cited no authority or principle to the Court contrary to the plaintiff's submission.

8. Further, the plaintiff respectfully submits that the Court's set-off finding involves a misapprehension of the law as it is based upon a principle that set-off has a role to play (in equity) even where, as is the case here, there are no cross demands for money or damages between the parties. The plaintiff is not aware of any such principle and it is contrary the (sic) principle and authorities cited in paragraph 24 of its previous Outline of Submissions: see On Equity , PW Young et al, Lawbook Co, 2009, at [15.360]; The Law of Set-Off , 3 rd ed, SR Derham, Oxford University Press at [1.01], [3.02] and [9.01]. Ultimately, all cases of set-off require the Court making a finding in monetary terms in relation to the claim or demand by the plaintiff against defendant (sic) and setting that amount off or subtracting it from a finding in monetary terms in relation to the claim or demand by the defendant against the plaintiff; the Court ultimately giving a verdict and judgment for the plaintiff for the difference between the two amounts: see Equity Doctrines & Remedies , R Meagher et al, 4 th ed, LexisNexis Butterworths at [37-005]. In these proceedings, the defendant has a monetary claim against the plaintiff for damages for misleading or deceptive conduct or unconscionable conduct. However, the plaintiff makes no monetary or damages claim against the defendant; rather, it seeks a declaration and injunction that the defendant do those things it promised under the Deed to enable the plaintiff to have released to it from a third party, the plaintiff's solicitor, the plaintiff's money (the Security Deposit)."

9. And:

"12 Finally, the plaintiff respectfully submits that Lean v Tumut River Orchard Management Ltd [2003] FCA 269 does not support the principle set out in the Court's set-off finding. Briefly, that case involved inter alia claims by the applicant that it was entitled to damages against the first respondent for its misleading or deceptive or unconscionable conduct under the Trade Practices Act that the applicant alleged caused it to enter into various agreements including Investor Loan Agreements. Those Investor Loan Agreements were later assigned to the second respondent. The second respondent had in fact commenced proceedings against the applicant in the Local Court for moneys allegedly owing under the Investor Loan Agreements. The issues identified in the judgment at [56] on the second respondent's strike out application were: firstly , whether it was reasonably arguable that the applicant was entitled to an equitable set-off against the first respondent (in respect of moneys owing under the Investor Loan Agreements) of its damages for misleading or deceptive or unconscionable conduct; and secondly , whether it was reasonably arguable that the second respondent took its rights (under the Investor Loan Agreements) as assignee from the first respondent subject to the applicant's equitable set-off against the first respondent. In respect of the first issue the Court in Lean , in the passages cited at [57] of this Court's judgment, found for the applicant. At [62]ff, especially [79], of Lean , the Court found for the applicant on the second issue. Hence, Lean was a case that involved cross demands of money or damages. It does not support the principle stated by the Court in its set-off finding and does not undermine the plaintiff's submission that all set-off involves cross demands for money or damages"

10. Mr Wells opposed the Plaintiff's application. He submitted:

"a. the application for summary judgment was heard over the course of two days and has concluded. The plaintiff had ample opportunity to raise the matters it now wishes to raise during oral argument on 24 September 2010 and 8 October 2010;

b. there needs to be finality in the plaintiff's application for summary dismissal;

c. the plaintiff is not prejudiced in any way if the application is rejected because the funds it seeks remain in an interest bearing account and it has not lost any rights to assert at the final hearing that it is entitled to the funds.

d. the matter involves a question of practice and procedure;

e. the matter involves the exercise of the Court's discretion;

f. the decision is interlocutory and does not and will not affect substantive rights;

g. the interests of justice are better served by rejecting the plaintiff's application; and

h. the interests of the parties are better served by proceeding towards a final hearing and resolving all maters in dispute between the parties."

11. Mr Wells also submitted that:

"4. The Plaintiff asserts that there has been error and refers to pars [60], [75] and [76] of the judgment of Hallen AsJ dated 11 November 2010; see par [5] of the plaintiff's submissions dated 17 November 2010.

5. It is submitted that the paragraphs of the judgment relied upon do not contain any error which would justify re-opening the application for summary judgment.

Discretionary Judgment on a matter of practice and procedure which did not determine any substantive rights

6. The application should be refused since it effectively seeks to appeal from the interlocutory judgment which was discretionary on a matter of practice and procedure which did not determine any substantive rights (see par [4] of the plaintiff's submissions and reliance upon the contention that the judgment is "susceptible to appeal").

...

8. It is submitted that the circumstances of this matter are unexceptional. Hallen AsJ approached the application on the correct basis as set out in [28]-[37] of his Honour's judgment. The interlocutory judgment is discretionary on a matter of practice and procedure which does not determine any substantive rights. There has been no miscarriage of justice as the plaintiff has not been deprived of the right to pursue its claim for the funds at the trial."

Consideration

12. There is no dispute that I did not refer the parties, during submissions on the amended notice of motion for summary judgment, to Lean v Tumut River Orchard Management [2003] FCA 269. I did not then, and I do not now, consider that there was any reason to do so. Experienced counsel appeared for each of the parties on the hearing for summary judgment.
    
13. Also, I note that the Plaintiff's submissions on the summary judgment application, referred to On Equity , PW Young et al, Lawbook Co, 2009, at [15.360]. At [15.460], Lean v Tumut River Orchard Management Ltd was referred to.
    
14. However, this complaint does not seem to be the basis of the real thrust of the Plaintiff's complaint. As I understand what was put by Mr Coles QC, it is what is said to be a misapprehension of the law, namely that the argument of equitable set-off, for the purpose of the summary judgment application, raised a triable issue (see [77] of the reasons for Judgment).
    
15. Implicit in this submission is the acceptance of the obvious proposition that I did not determine that the Defendant was entitled to an equitable set-off.
    
16. Mr Coles QC submitted that, whilst the Defendant had a monetary claim against the Plaintiff for damages, for misleading or deceptive conduct, or unconscionable conduct, the Plaintiff was seeking a declaration and mandatory injunction that the Defendant do things under the Deed made between the parties, to enable the Plaintiff to have released to it, from a third party, the Plaintiff's own money. Therefore, it was submitted that the Plaintiff made no monetary, or damages, claim, against the Defendant, with the effect that there could not be an equitable set-off.
    
17. Whether what I expressed in the reasons for Judgment, which is now the subject of the Plaintiff's complaint, was right, to revisit what was said, as I am now asked to do by the Plaintiff, leads, in my view, to being cast in the role of hearing what amounts to an appeal against my own decision.
    
18. One discerns the type of argument raised in the Plaintiff's submissions, the substance of which I have set out above, as would be presented on an appeal. No doubt, the Plaintiff may appeal, with leave, perhaps, if it wishes to do so. If the position is as obvious as has been submitted it is, leave will be granted and the appeal will be successful. That is a course, in my view, that the Plaintiff may take, if so advised.
    
19. Additionally, I note that the Plaintiff has focussed on [77] of the reasons for Judgment. The meanings of "triable issue " and "absence of triable issue" in the present context have been expressed in various ways in the authorities. Some of the leading cases are Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 (Dixon J); General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; [1964] HCA 69; (1964) 112 CLR 125 (Barwick CJ) at 128-130; Theseus Exploration N.L. v Foyster [1972] HCA 41; (1972) 126 CLR 507 at 514 (Barwick CJ), 514-515 (Gibbs J), 523 (Stephen J); Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598; and Spencer v The Commonwealth [2010] HCA 28; (2010) 269 ALR 233; (2010) 84 ALJR 612.
    
20. The element that appears to be common to all of the cases requires the court to come to a view, with a high degree of certainty, about the ultimate outcome of the proceedings. For reasons I expressed in the Judgment, I could not come to such a view.
    
21. As stated above, I did not conclude that the Defendant's argument regarding equitable set-off would succeed. I stressed that I did not, necessarily, accept, as correct, the argument that was advanced. I simply left open, for determination at the final hearing, the availability of the argument that an equitable set-off can be pleaded against a non-money claim (assuming that is, in fact, what the Plaintiff's claim is).
    
22. Even now, after additional argument by Mr Coles QC, I am not satisfied that to leave the argument available for determination at the hearing is such an obvious error of reasoning because of some misapprehension of the relevant law.
    
23. There is, in any event, another basis upon which I am not prepared to grant the relief that the Plaintiff seeks in the notice of motion. I set out at [28] - [29] of the reasons for Judgment, the terms and effect of rule 13.1, Uniform Civil Procedure Rules, 2005. I specifically noted that summary relief is a discretionary remedy.
    
24. At all times, the parties have accepted that the hearing of the substantive claim would involve, principally, the Defendant's defence and cross-claim, and that the cross-claim must proceed to a final hearing. However, it was not suggested, during the course of either notice of motion, that summary judgement would determine all of the Plaintiff's claims against the Defendant. Nor was it put that what it was seeking would otherwise determine the claim for damages for the breaches by the Defendant of the Deed as was alleged.
    
25. In this regard, I should point out that the Plaintiff's claim as disclosed in the Statement of Claim, is not only for a declaration and injunction. In its amended Statement of Claim, the Plaintiff has claimed that it is entitled to have refunded to it the Security Deposit, plus all accrued interest (Para 26). "Further or alternatively", it has alleged that the Defendant is indebted to it for liquidated damages (Para 27), and/or that, as a result of the Defendant's breaches (which, presumably, includes the failure, refusal, or neglect, to allow the refund of the Security Deposit), it has suffered loss and damage (Para 28). No particulars of the loss and damage are included in the Amended Statement of Claim. Thus, there will have to be a determination of the Plaintiff's case whatever the result of the notice of motion had been.
    
26. Thus, on any view, the matter would have to proceed to a hearing.
    
27. Because so much was clear even before the determination of the application for summary judgment, directions for the further conduct of the proceedings were made, at the conclusion of the hearing of the notice of motion for summary judgment, so that, whatever the result, the substantive hearing would not be delayed. Meantime, the amount of the Security Deposit, the subject of the application, remained in the building society account accruing interest. The Plaintiff's position in respect thereof was thus secure in the event that it ultimately succeeded.
    
28. Even before the delivery of the reasons for my earlier judgment, I attempted to ensure that the Plaintiff would be protected from suffering the prejudice that was asserted it might suffer, by not having been paid the moneys to which it said it was entitled. I required the Defendant to give an undertaking as to damages (which, I note, was given, on its behalf, by counsel) in case it was established that the Plaintiff had been held out of what was found to be funds to which it was entitled.
    
29. In all the circumstances, I am not prepared to grant the relief sought by the Plaintiff in the notice of motion filed on 18 November 2010. I dismiss that notice of motion with costs.
    

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