Mills v Better Buildings Pty Ltd [2010] NSWSC 1093

Mills v Better Buildings Pty Ltd [2010] NSWSC 1093

The agency issue was a substantial common issue of fact and law, because it focused on the relationship between Better Buildings and other defendants and was highly unlikely to vary between plaintiffs. However, each plaintiff otherwise had a separate case requiring proof of representations, reliance, loss and discretionary relief, so splitting the single proceeding and leaving twelve plaintiffs in limbo was inappropriate. The same desirable result could be achieved by a representative order on the agency issue only, conditional on the other plaintiffs discontinuing with liberty to commence separate proceedings after determination of Mr Mills' proceedings without penalty.

Jurisdiction
Australia
Judgment Date
17 September 2010
Procedural Posture
Practice and Procedure; Application for Representative Order / Amended Notice of Motion Seeking a Test Case or Representative Order; Pleadings Complete or Almost Complete, Only the First Plaintiff Had Put on Evidence, and Discovery Complete or Almost Complete
Outcome
Partial representative orders made on terms.
Legal Topics
['representative Proceedings' 'representative Order' 'test Case' 'misleading and Deceptive Conduct' 'agency' 'return of Deposit Under Contract of Sale']
['practice and Procedure' 'civil Procedure' 'consumer Law' 'conveyancing'] ['representative Proceedings' 'representative Order' 'test Case' 'misleading and Deceptive Conduct' 'agency' 'return of Deposit Under Contract of Sale']

Case Brief

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Procedural Posture

Practice and Procedure; Application for Representative Order / Amended Notice of Motion Seeking a Test Case or Representative Order; Pleadings Complete or Almost Complete, Only the First Plaintiff Had Put on Evidence, and Discovery Complete or Almost Complete

Legal Issues

  1. 1 ['Whether the claim of Malcolm James Mills should be heard and determined first as a test case for other plaintiffs pursuant to s 61 of the Civil Procedure Act.' "Whether the proceeding should be carried on by Malcolm James Mills as representing other plaintiffs under r 7.4(2) of the Uniform Civil Procedure Rules 2005 (NSW), s 61 of the Civil Procedure Act, or the Court's inherent or incidental jurisdiction." 'Whether the asserted agency issue was a common issue of fact and law suitable for a representative order.' "Whether leaving the other plaintiffs' claims in abeyance within one proceeding was an appropriate case management course."]

Ratio Decidendi

The agency issue was a substantial common issue of fact and law, because it focused on the relationship between Better Buildings and other defendants and was highly unlikely to vary between plaintiffs. However, each plaintiff otherwise had a separate case requiring proof of representations, reliance, loss and discretionary relief, so splitting the single proceeding and leaving twelve plaintiffs in limbo was inappropriate. The same desirable result could be achieved by a representative order on the agency issue only, conditional on the other plaintiffs discontinuing with liberty to commence separate proceedings after determination of Mr Mills' proceedings without penalty.

Court Disposition

Partial representative orders made on terms.

Orders

  • ["Representative order to be made as to the common issue of agency only on condition that all Plaintiffs other than Mr Mills discontinue, on the express understanding that upon determination of Mr Mills' proceedings they will be at liberty to commence separate proceedings if so advised without penalty." "Notice of...