Kyabram Property Investments Pty Ltd v Murray; Murray v Duddy

[2002] NSWSC 1101

CITATION:	Kyabram Property Investments Pty Ltd & Anor v Murray & Anor; Murray v Duddy [2002] NSWSC 1101
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 12184/01; 12555/01
HEARING DATE(S):	18 November 2002
JUDGMENT DATE:	18 November 2002
PARTIES :	Kyabram Property Investments Pty Ltd North Central Securities Ltd Wendy Jill Murray Robert Ormiston Murray Eric Keith Duddy
JUDGMENT OF:	Sperling J at 1

COUNSEL :	Mr P Bolster for Kyabram Property Investments Pty Ltd (P1 in 12184/01) Mr M Abdul-Karim for Ms Murray (D1 in 12184/01; P in 12555/01) Mr M Bradford for Mr Duddy (D in 12555/01)
SOLICITORS:	Kell Moore Solicitors for the Plaintiffs in 12184/01 McKell's Solicitors for the Defedants in 12184/01 and the Plaintiff in 12555/01 Duncan MacLean Solicitor for the Defendant in 12555/01
CATCHWORDS:	Application that proceedings be heard together - no question of principle
LEGISLATION CITED:	Contracts Review Act 1980
DECISION:	1. I vacate the conference hearing fixed for 12 February 2003; 2. I order that proceedings 12555/01 be heard together with proceedings 12184/01 on 8 April 2003.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Applications List

Sperling J

Monday, 18 November 2002

12184/01 Kyabram Property Investments Pty Ltd & Anor v Murray & Anor
12555/01 Murray v Duddy

Judgment

1 His Honour: In these two proceedings the issues arise out of the same transaction; namely, the purchase by Ms Murray on 9 May 1997 of properties, including a property at West Garrawan.

2 In proceedings 12184/01, Kyabram Property Investments sues Ms Murray for an order for possession of the West Garrawan property. Those proceedings arise from a loan and a mortgage over that property provided to enable the property to be purchased. Ms Murray cross-claims for relief under the Contracts Review Act 1980 and on cognate grounds.

3 In proceedings 12555/01, Ms Murray sues her uncle, Mr Duddy, claiming an indemnity against her liabilities, such as they may be, in relation to the purchase of the West Garrawan property, asserting that she purchased the property at his request and on his behalf.

4 A notice of motion has been filed by Ms Murray in each of those proceedings for an order that the proceedings be consolidated or heard together.

5 The proceedings 12184/01 are listed for hearing, with a current estimate of two days, on 8 April 2003. Proceedings 12555/01 have been listed for a status conference, with a current order that Mr Duddy file an accountant’s report by 13 December 2002 which will complete the evidence in those proceedings.

6 The present applications are opposed by Kyabram. Mr Duddy neither consents nor opposes the applications.

7 The court is informed by Mr Abdul-Karim, who appears on behalf of Ms Murray, that a number of witnesses in the two cases are in common and that some of the evidence of those witnesses is in common. That is disputed by Mr Bolster, who appears for Kyabram. For present purposes, I believe that the court should act on the position as stated on behalf of Ms Murray in that regard because her counsel is aware of the way in which he intends to present her case in each of the proceedings.

8 An estimate is now given for the hearing of the Kyabram matter alone of approximately five days. It is said that a hearing of the Duddy matter would likely be as long. Mr Bolster disputes the estimate now given for the hearing of the Kyabram matter, but again it is counsel for Ms Murray who is in the better position to know what time is likely to be occupied in the presentation of Ms Murray’s case in those proceedings.

9 It is said that a combined hearing of the two matters is likely to be not longer than five to six days, which I must say does not seem to me to be entirely consistent with the estimates which are given for the hearing of each case separately. But however that may be, I should proceed on the basis of the estimate of five to six days for a combined hearing.

10 There being only the accountant’s report outstanding in relation to the Duddy matter, it appears to be practicable to fix that matter for hearing now.

11 Having regard to these considerations, the balance of interest in terms of time and cost is in favour of a joint hearing.

12 Accordingly, I make the following orders:

1. I vacate the conference hearing fixed for 12 February 2003;

2. I order that proceedings 12555/01 be heard together with proceedings 12184/01 on 8 April 2003.

13 Because I have to deal with something else straight away, I will reserve my decision on the question of costs in relation to these matters. I will give that decision later in the week. There will be no need for any attendance. My associate will inform the parties of the result.

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Last Modified: 11/22/2002