Mitry v Chardnas Pty Ltd

[2008] NSWSC 359

CITATION:	Mitry v Chardnas Pty Ltd [2008] NSWSC 359
HEARING DATE(S):	14 April 2008
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	14 April 2008
DECISION:	Appliction refused. Trial vacated. Plaintiff to pay defendants' costs thrown away.
CATCHWORDS:	PROCEDURE - Preliminary Issues - Misunderstanding as to whether an agreement as to calculation of damages - Application to treat liability under statement of claim and whole of cross claim as a preliminary issue - Defendants' submission that all matters inextricably linked
LEGISLATION CITED:	Civil Procedure Act 2005
CASES CITED:	Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) CLR 1
PARTIES:	Sandra Mitry (Plaintiff / First cross defendant) Chardnas Pty Ltd (First defendant) Vijay Maniam (Second defendant / Cross claimant) Richard Mitry (Second cross defendant)
FILE NUMBER(S):	SC 1352/05
COUNSEL:	Mr A G Rogers (Plaintiff)
SOLICITORS:	Fitzpatrick Solicitors Pty Ltd (Plaintiff / Cross defendants) Stephen Spinak Solicitor (Defendants / Cross claimants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 14 APRIL 2008

1352/05 SANDRA MITRY v CHARDNAS PTY LTD & ANOR

EX TEMPORE JUDGMENT

1 This matter is set down for trial before me for three days commencing on Wednesday. An application is brought by the plaintiff for the determination of portion only of its statement of claim together with the entirety of the cross-claim separately and in advance of the assessment of the quantum of any loss that might be held to be sustained by the plaintiff.

2 The matter has been brought before me this morning because of a misunderstanding that has arisen from the written submissions exchanged between the parties in accordance with my directions in the pre-trial management of the matter.

3 The plaintiff's outline of argument referred, in par 25, to an agreement between the parties that profits would be calculated in a specific way. In par 34 of the defendants’ outline of argument it was stated, with respect to par 25 of the plaintiff's outline of argument, that there had been no such agreement between the parties as to how the damages would be calculated.

4 It is on the basis of this misunderstanding as to how quantum would be established by the plaintiff that the application is made for the division of the matter in the manner I have described.

5 What is said in opposition to the application is two-fold: first, that the issue of quantum is inextricably linked to the issue of entitlement to damages and; secondly, that on the material produced, no profits have been established so that there will be no basis for a claim for loss of profits.

6 The division of a trial into separate issues has its drawbacks and should only be exercised where the division can be seen to achieve savings in time and cost and to advance the just, quick and cheap resolution of the real issues in the proceedings (Civil Procedure Act 2005, s 56(1)). But it has been pointed out that the attractions of trials of issues rather than cases in their totality, are often more chimerical than real (Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [168])

7 When it is submitted that the issues are inextricably linked, it seems to me to be unwise to order that the proceedings be divided in the way sought by the plaintiff. I reject the application.

8 Consequent upon this decision, a second application is made to vacate the hearing. I appreciate that the plaintiff is embarrassed by her inability, at this late stage, to prove her damages as a result of the misunderstanding as to the method in which profits should be determined.

9 I accede to the application to vacate the hearing, but it must be on the basis that the plaintiff will pay the defendants’ costs thrown away by the adjournment.

10 I stand the matter over before the Registrar at 9.30am on Tuesday 15 April 2008 for directions.

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