Norcross Pictorial Calendars Pty Ltd v Central Coast Council

These proceedings were commenced in 2017.

On 5 December 2019 they were set down for hearing for seven days commencing yesterday, 24 August 2020.

The proceedings arise out of a joint venture between the first plaintiff, Norcross Pictorial Calendars Pty Ltd and Gosford City Council, to which the defendant is the successor. Under that joint venture, Norcross agreed to build a public car park on part of land owned by the Council in consideration of being able to develop for its own benefit the balance of the Council’s land as a mixed residential and commercial development. That summary oversimplifies somewhat the nature of the joint venture but it suffices for present purposes.

One of the complaints Norcross makes against the Council arises from the Council’s rescission of a resolution granting Norcross or its nominee an electricity easement over Council’s land to allow power to be directed to the development site.

The plaintiffs together, and the distinction between them is not significant for present purposes, alleged that they thereby suffered loss.

Thus, in their List Statement, the plaintiffs set out what they contend to be the Council’s breach of an obligation to grant the easement in question and state at C30:

The Council responded to that allegation simply by denying it.

In submissions served last Thursday 20 August 2020, the Council submitted, for the first time, that:

Yesterday, the proceedings reached a stage where Mr Marshall SC, who appears with Mr Walker for the Council, was cross-examining the plaintiff’s first witness, Mr Andrew Cochrane.

Once it became clear that Mr Marshall was seeking to cross-examine Mr Cochrane about the issues referred to in [52] of last Thursday’s submission, Mr Condon SC, who appears with Mr Bentley for the plaintiffs, objected on the grounds of relevance. Mr Condon submitted that the Council had not hitherto raised the matter agitated at [52] of its submissions and should not be permitted to do so.

After some debate, I directed the Council to circulate a draft List Response that clearly raised the issue foreshadowed at [52] of its submissions.

The proposed Response, which I marked MFI-3, expanded the Council’s response to paragraph C30 of the List Statement as follows:

The ambit of the proposed amendment to the Response reveals the problem here.

The Council seeks to open up what it contends to be the question of the true cause of the delay of practical completion of the development by reference to the detailed matters proposed to be agitated in the Response.

This is an argument that has not been foreshadowed.

It is true that a witness to be called by the plaintiff, Mr Connell, who was the project manager for the builder, said in an affidavit sworn in June of last year that:

It is also true that the documents Mr Marshall seeks to deploy in cross-examining Mr Cochrane are those that the plaintiff has put into evidence to support their case.

However, these are reasons why the council should, in fairness, have foreshadowed the argument it now seeks to advance. It should have done so by amending its Response, in the manner now proposed, well before trial.

I agree with the submissions made by Mr Condon and Mr Bentley that:

As Ipp JA said in Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors [1] :

The same of course applies in the Technology and Construction List.

The plaintiffs were taken by surprise by the argument now proposed to be advanced.

Mr Condon says, and I accept, that the plaintiffs cannot meet the case now proposed to be agitated without an adjournment.

It would not, in the circumstances of this case, be just to impose an adjournment on the plaintiffs.

The application by the defendant to amend its Response, in accordance with MFI 3, is refused.

I will not permit cross examination of Mr Cochrane, or any other witness, on the issues sought to be raised by the amendment.

The Council should pay the costs of its application to amend the Response.