148 Brunswick Street Pty Ltd v Strategix Training Group Pty Ltd [2021] QDC 38

DISTRICT COURT OF QUEENSLAND CITATION: 148 Brunswick Street Pty Ltd v Strategix Training Group Pty Ltd [2021] QDC 38 PARTIES: 148 BRUNSWICK STREET PTY LTD ACN 117 914 664 (Plaintiff) v STRATEGIX TRAINING GROUP PTY LTD ACN 108 064 526 (Defendant) FILE NO/S: BD3156/20 DIVISION: Civil DELIVERED ON: 10 March 2021 DELIVERED AT: Brisbane HEARING DATE: 24 February 2021 JUDGE: Barlow QC DCJ ORDERS: The application filed on 28 January 2021 be dismissed. CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – PENALTIES AND LIQUIDATED DAMAGES – OTHER PARTICULAR CASES – plaintiff leased premises to defendant – plaintiff and defendant agreed on variation to lease which provided certain financial incentives to defendant – financial incentives conditioned on defendant not exercising option to terminate lease early – defendant exercised option and terminated early – whether clause requiring repayment of incentives amounts to a penalty clause. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DEMAND OR FOR POSSESSION OF LAND – plaintiff applied for summary judgment on claim for damages for breach of a lease as varied – whether defendant has a real prospect of defending the claim. Uniform Civil Procedure Rules 1999 (Qld), r 292(2) Agar v Hyde (2000) 201 CLR 552, cited -- 1 of 10 -- 2 Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205, considered Associated Distributors Ltd v Hall [1938] 2 KB 83, considered Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, cited GWC Property Group Pty Ltd v Higginson [2014] QSC 264, cited O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359, considered Paciocco v Australia and New Zealand Banking Group Ltd (2014) 309 ALR 249, considered Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199, considered COUNSEL: PJ Sams for the plaintiff J Levine for the defendant SOLICITORS: PHV Law for the plaintiff Leasewise Group for the defendant [1] This is an application by the plaintiff for summary judgment for damages for breach of a deed. The claim and the application seek a sum principally calculated by reference to rental allegedly payable under a deed associated with a lease of premises to the defendant. The defendant opposes the application on the principal ground that there is a real prospect that the amount claimed is a penalty and therefore unenforceable. [2] The court should only grant summary judgment if the defendant has no real prospect of successfully defending the claim or part of it and there is no need for a trial: Uniform Civil Procedure Rules, r 292(2). That means a real prospect as opposed to a fanciful prospect.1 I should only grant summary judgment if I consider that there is a high degree of certainty about the ultimate outcome of the proceeding if it were to go to trial in the ordinary way.2 [3] On 3 April 2018, the plaintiff (as lessor) and the defendant (as lessee) entered into a lease of premises in a building in Fortitude Valley. The lease was for a term commencing on 1 December 2017 and ending on 30 May 2023 (the “Expiry Date”). [4] On 11 July 2018, the parties executed a deed, referred to as a “variation deed”, by which the plaintiff agreed to waive the defendant’s obligation, under the lease, to pay rent for the first six months of the lease, to pay $50,000 toward the defendant’s fitout of the premises and to accept reduced rent for what appears to be the balance of the term of the lease after the rent free period.3 The deed refers to those concessions as 1 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, particularly at [11]-[13]. 2 Agar v Hyde (2000) 201 CLR 552, 575-576; Coldham-Fussell v Commissioner of Taxation [2011] QCA 45, [102]. 3 I say “what appears to be” because the deed provides that lower rent will be accepted for each of “year 1” to “year 5”, which on its face seems to refer to the first 5 years of the lease. However, it also defines “Rent Rebate Period” as the entire term of the lease (indeed, one day longer than that term). Construing it practically and commercially, my preliminary view is that it seems to intend that there be six months rent free and the remaining five years of the lease at a reduced rental. -- 2 of 10 -- 3 the “Incentive”. It is not disputed that, between 1 December 2017 and 31 May 2020, the plaintiff charged the defendant rent in accordance with the deed, thereby providing most of the Incentive for that period.4 The plaintiff claims that, in circumstances described below, the defendant is obliged to repay the entire amount of the Incentive that has been provided to it. [5] The variation deed was drawn as if it were to be executed before, or at the same time as, the lease. For example, the “Background” provides: A The Lessee wishes to lease the Premises on the Lease Commencing [sic] Date. B The Lessee has agreed to enter into the Lease subject to the covenants in this Deed. [6] However, it is undisputed that the variation deed was executed more than 2 months after the lease. (The lease itself was executed more than four months after its commencement date.) Notwithstanding that, the parties appear to be in agreement that the deed and the lease should be read together, as if they were one deed, and they should be construed on that basis.5 [7] Clause 7 of the variation deed provides: 7 BREAK DATE 7.1 At any time in the Break Date Period the Lessee may serve the Lessor with a Notice of Termination of the Lease which will serve to alter the Expiry Date of the Lease to the Break Date. 7.2 If the Lessee serves the Lessor with a Notice of Termination of the Lease in accordance with the above clause the Lessee will be required to refund to the Lessor the value of the Incentive afforded to the Lessee. [8] “Break Date Period” is defined as the period between 1 December 2017 and 31 May 2020. “Break Date” is defined as meaning 31 May 2020. [9] On 29 May 2020, the defendant served on the plaintiff a notice of termination of the lease in apparent reliance on clause 7.1. The expiry date of the lease therefore became 31 May 2020 instead of 30 May 2023. [10] The defendant continued in occupation of the premises, holding over under a monthly tenancy (as provided for in the lease), until 31 October 2020 or 30 November 2020.6 It paid rent (at the discounted rate) and outgoings up to 31 October 2020. [11] The plaintiff now sues for recovery of the amount of the Incentive that it provided to the defendant, plus the rent and outgoings for November 2020. It also seeks to recover the difference between the rent paid for the months of June to October 20207 and the 4 It seems that the plaintiff did not pay the amount of the Fitout Contribution, but instead set it off against another obligation of the defendant. For present purposes, that is irrelevant. 5 GWC Property Group Pty Ltd v Higginson [2014] QSC 264 (“GWC”), [16]. 6 The date on which it actually vacated the premises appears to be in dispute. 7 Which, surprisingly, was paid and accepted as if the rates payable under the variation deed still applied. The plaintiff claims those sums as amount owing “pursuant to clause 7.2 of the Variation Deed” when they are, at least arguably, not the subject of that clause, given that the lease had come to an end and it provided that, during any holding over period, the defendant would pay rent at the -- 3 of 10 -- 4 full amount of rent payable for those months. Surprisingly, it does not sue for those sums as a contractually due debt, but as damages for breach of contract. However, the damages claimed are substantially in the sums allegedly due under the deed of variation (the Incentive) and the lease (the rent and outgoings). Other damages alleged are costs allegedly incurred by the plaintiff in restoring the premises to a lettable condition after the defendant vacated. However, it did not pursue that part of its claim in its application for summary judgment. Its counsel informed me that, if the court were to award summary judgment for the Incentive and the November rent and outgoings, the plaintiff would not pursue the balance of its claim. [12] The defendant submits that it has a good arguable defence that the purported obligation to repay the Incentive is a penalty because it allegedly arose only upon breach by the defendant of its obligations under the lease. Alternatively, even if not arising from a breach of the lease, the obligation to repay the Incentive arose only because the defendant chose (as it was entitled to do under the variation deed) not to comply with the primary obligation in the lease - that the defendant take the premises for a 5½ year term - by reducing it to a 2½ year term. The requirement that it repay the Incentive in that circumstance was in the nature of punishment for its non- observance of the primary obligation. The penalty doctrine is not limited to where there has been a breach of contract. It can apply where the penal obligation is, as a matter of substance, collateral to and consequent on the defendant’s non-observance of another obligation. The collateral obligation imposes an additional detriment on the defendant, to the benefit of the plaintiff. It is in the nature of security for and in terrorem of the satisfaction of the primary obligation.8 The collateral obligation is prima facie a penalty in that circumstance. The distinction drawn by the plaintiff seeks to elevate form over substance, which the Court will not do. The true effect of clause 7.2 of the variation deed is in substance the same as a clause in a lease that has been held to constitute a penalty by requiring that, in the event of default by the lessee, it became liable to pay the primary amount of rent rather than the discounted amount.9 That raises a triable issue whether the amount claimed is so excessive that it constitutes punishment of the defendant for its failure to observe the primary obligation. [13] In response, the plaintiff says that the obligation to repay the Incentive did not arise because of any breach by the defendant of either the lease or the variation deed. Rather, it was consideration for the defendant exercising its choice to shorten the term of the lease from 5½ years to 2½ years. Far from arising on breach or being punishment for, or in terrorem of, the defendant’s failure to complete the 5½ year term of the lease, the obligation arose from compliance with the variation deed. It was consideration for the exercise of the option to shorten the term of the lease that was granted to it by the plaintiff. It cannot amount to a penalty. The issue whether it could possibly amount to a penalty is an issue of law that the Court may determine summarily. There is no factual issue that needs to be determined. [14] As for the plaintiff’s pleading that there is a breach of contract for which it seeks damages, the plaintiff submits that the breach relied on is, relevantly, that the defendant has breached its obligation under the variation deed to repay the Incentive. rates provided in the lease: clause 14. However, for present purposes it is unnecessary for me to consider whether the defendant indeed owes those sums and, if so, under which instrument. 8 This formulation substantially derives from the reasons of the High Court in Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 (“Andrews”), [10]. 9 Squash Vision Pty Ltd v Il Mito Pty Ltd [2020] QSC 328. -- 4 of 10 -- 5 The plaintiff submits that it does not plead any breach of the lease, so far as the Incentive claim is concerned. Therefore, the loss caused by that breach is the sum of the Incentive – a liquidated sum about which there is no dispute, or any minimal dispute can be determined summarily. Alternatively, the Court could take a practical view and treat it as a claim for debt. In either case, there is no reasonably arguable defence. The defendant does not have a real prospect of successfully defending the proceeding. Summary judgment is merited. [15] The plaintiff also submits that this case is different to other claims for repayment of incentives under a lease that have been dealt with by courts. In GWC, for example, the incentive deed was executed with the lease and, more importantly, it provided that the tenant must repay the incentive if the lease was terminated early by reason of default by the tenant. Dalton J held that it was clearly a penalty. This case differs for the reason I have summarised at [13] above. [16] In O’Dea v Allstates Leasing System (WA) Pty Ltd,10 Gibbs CJ considered a number of cases in which courts had held that a payment is not a penalty. His Honour considered there to be two classes of case in which there can be no question of penalty. The first, relevantly, is one:11 where a creditor agrees to accept payment of part of his debt in full discharge if certain conditions are met but stipulates that if the conditions are not met he will be entitled to recover the original debt: Thompson v. Hudson;12 Ex parte Burden; In re Neil.13 In all the cases of this kind there is a present debt, which, by reason of an indulgence given by the creditor, is payable either in the future, or in a lesser amount, provided that certain conditions are met. The failure of the conditions does not mean that the creditor becomes entitled to damages; the consequence is that the sum which was always owed, but which the debtor was allowed to pay by instalments or in a smaller amount, becomes recoverable at once or in full. The second class of case arises where the parties have stipulated that a sum shall become payable on a certain event which, although brought about by the party required to make the payment, does not involve a breach of contract. It has been held that where there is a contract for the payment of a certain sum in a certain event, and that event has happened, the sum is payable and no question of penalty versus liquidated damages arises: In re Apex Supply Co;14 Alder v. Moore.15 [17] His Honour went on to discuss hire purchase agreements within the second class of case. Relevantly, he said:16 If, however, the agreement is terminated by the hirer himself, e.g. because he is unable to keep up his payments, it has been held that the question whether the sum payable is liquidated damages or a penalty does not arise, since what has occurred is that the hirer has exercised his option to put an end to the contract on paying a certain sum, and the sum for which he has made himself liable must 10 (1983) 152 CLR 359 (“O’Dea”). 11 (1983) 152 CLR 359, 367. 12 (1869) LR 4 HL 1, 15-16, 27-28, 30. 13 (1881) 16 Ch D 675. 14 [1942] Ch 108, 119. 15 [1961] 2 QB 57, 65. 16 (1983) 152 CLR 359, 367-368. -- 5 of 10 -- 6 be paid: Associated Distributors Ltd v Hall.17 Conflicting opinions have been expressed as to the correctness of that decision (see Campbell Discount Co Ltd v Bridge;18 and United Dominions Trust (Commercial) Ltd v Ennis19) but the question whether it was correct does not fall for consideration in the present case. [18] Mr Sams, appearing for the plaintiff, submitted that his Honour’s general description of the second class of case set out above applies here. More particularly, the situation of a hirer exercising an option to terminate the hire purchase agreement early on payment of an agreed sum appears to be broadly analogous to the situation here. [19] As Gibbs CJ recorded, there has been disagreement whether the decision of the Court of Appeal of England and Wales in Associated Distributors was correct. I have reviewed that and later decisions to which his Honour referred. The question does not appear to have been authoritatively decided, at least in Australia. Shortly after O’Dea, Mason and Wilson JJ (with whom Gibbs CJ agreed) considered Associated Distributors and subsequent cases at some length, but again did not decide whether it was correct.20 Their Honours did note that “the doctrine of penalties has pursued such a tortuous path in the course of its long development that it is a risky enterprise to construct an argument on the basis of the old decisions.”21 [20] Having regard to the differences of opinion on the question expressed by eminent jurists, including in the House of Lords, and the High Court’s reluctance to determine whether Associated Distributors was correct,22 there remains a live issue whether, at least in the case of hire purchase agreements, such a clause does provide for a penalty or simply “confers on the hirer a right for which he agrees to pay a price.”23 An analogous issue appears to arise in the present case. [21] More recently, the High Court has made clear that a clause of a contract may be a penalty even if it does not provide for an additional obligation arising on breach of that (or another) contract.24 Thus, even if the obligation in this case does not arise on a breach of contract, it is necessary to consider whether it may possibly amount to a penalty. [22] In explaining Andrews in a subsequent related decision, Gordon J described steps that she thought may (but not must) be considered in determining whether a particular obligation may be a penalty. Her Honour said:25 To assist in understanding the form and substance of the following analysis, a particular stipulation may (not must) be considered by reference to the following steps: 17 [1938] 2 KB 83 (“Associated Distributors”). 18 [1962] AC 600, 614, 631, 633. 19 [1968] 1 QB 54, 64, 67. 20 AMEV-UDC Finance Limited v Austin (1986) 162 CLR 170, 183-186. 21 (1986) 162 CLR 170, 186. 22 Notwithstanding the view expressed by David J of the Supreme Court of South Australia that “the decision in Associated Distributors Ltd v Hall still stands:” South Australian Famers Fuels Pty Ltd v Whittingham [2008] SASC 211, (2008) 257 LSJS 153, [33]. 23 Campbell Discount Co Ltd v Bridge [1962] AC 600, 613. 24 Andrews, [78], [84]. 25 Paciocco v Australia and New Zealand Banking Group Ltd (2014) 309 ALR 249 (“Paciocco trial”), [15]. -- 6 of 10 -- 7 (1) Identify the terms and inherent circumstances of the contract, judged at the time of the making of the contract: Dunlop26 at 86-87 and AMEV- UDC Finance Limited v Austin (1986) 162 CLR 170. (2) Identify the event or transaction which gives rise to the imposition of the stipulation: Dunlop at 86-87 and Andrews High Court at [12]. (3) Identify if the stipulation is payable on breach of a term of the contract (a necessary element at law but not in equity). This necessarily involves consideration of the substance of the term, including whether the term is security for, and in terrorem of, the satisfaction of the term. (5) Identify if the stipulation, as a matter of substance, is collateral (or accessory) to a primary stipulation in favour of one contracting party and the collateral stipulation, upon failure of the primary stipulation, imposes upon the other contracting party an additional detriment in the nature of a security for, and in terrorem of, the satisfaction of the primary stipulation. (5) If the answer to either question 3 or 4 is yes, then further questions arise (at law and in equity: see Andrews High Court at [77]) including: (5.1) Is the sum stipulated a genuine pre-estimate of damage? (5.2) Is the sum stipulated extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved? (5.3) Is the stipulation payable on the occurrence of one or more or all of several events of varying seriousness? These questions are necessarily interrelated. (6) If the answer to question 5 is that the sum stipulated is not a genuine pre- estimate of damage and is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have been sustained by the breach, or the failure of the primary stipulation upon which the stipulation was conditioned, then the stipulation is unenforceable to the extent that the stipulation exceeded that amount. Put another way, the party harmed by the breach or the failure of the primary stipulation may only enforce the stipulation to the extent of that party’s proved loss: Andrews High Court at [10]. [23] Her Honour went on to analyse the reasoning of the High Court in Andrews. Helpfully for the parties and the court in this case, her Honour made the following apposite remarks:27 (a) the law of penalties is not confined to payments (or other obligations) imposed upon breach of contract; (b) as a matter of substance, the collateral or accessory stipulation constituting a penalty operates “in the nature of a security for, and in terrorem of, the satisfaction of the primary stipulation;” 26 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 (footnote added). 27 Paciocco trial, [26]-[28], [31], [38]. -- 7 of 10 -- 8 (c) in other words: (i) the primary stipulation carries the substantive objective of the contract; (ii) the collateral stipulation is engaged on the failure of the primary stipulation and fulfils the function of acting as a security for, and in terrorem of, the satisfaction of that primary stipulation; (iii) the objective of the contract is achieved by payment of the money sum not being made rather than by being made - the second party wants the primary stipulation observed, not the payment of the penalty sum; the first party is so averse to paying the exorbitant sum that it will observe the primary stipulation; (d) the primary stipulation may be the occurrence or non-occurrence of an event which need not be the payment of money; (e) the question before her Honour was therefore – as a matter of construction of the relevant contract, was the requirement to pay the fee to be regarded as security for performance by the customer of other obligations to ANZ or was it a fee charged in accordance with pre-existing arrangements according to whether ANZ chose to provide something more and further to the customer? [24] On appeal from her Honour’s judgment, the Full Court upheld her decision insofar as it concerned what were termed “over-limit fees”. Allsop CJ said about that type of fee that it “was payable for a contractually permitted transaction, effectively extending the drawing limits temporarily.”28 His Honour went on to say:29 as a matter of substance, her Honour construed the clause and came to the view, correctly, in my view, that the clause provided for a payment for honouring of a transaction that could be rejected as beyond arrangements. To the extent that the submissions asserted that the clause cannot have any feature of encouragement to a desired end of compliance with contractual obligations such overlooked the fact that such is permissible. As Jacobs JA said in Metro- Goldwyn-Mayer v Greenham at 723 (earlier set out): It may well be intended by the agreement that such an additional showing should be strongly discouraged. For this reason a very large hiring fee compared with the original hiring fee is provided. [25] Of particular relevance to this application, the basis of which is that the contractual clause in question could not, on any reasonable construction, be said to impose a penalty, are these additional remarks by the Chief Justice:30 It can be accepted that, in a given fact situation, the surrounding circumstances, including the level of the relevant fee, may lead to the conclusion that a provision, that on its face provides for a fee for an additional contractual benefit, is in substance a disguise for a fee for a breach that is extravagant and unconscionable. Any such judgment recognises the possibility of the overlapping of the processes of construction of the instrument and its characterisation from all the circumstances. The true legal substantive meaning 28 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199 (“Paciocco appeal”), [217]. Besanko J (at [371]) and Middleton J (at [398]) agreed with the Chief Justice. 29 Paciocco appeal, [219], quoting Metro-Goldwyn-Mayer Pty Ltd v Greenham [1966] 2 NSWR 717. 30 Paciocco appeal, [222]. -- 8 of 10 -- 9 of the clause is integral to any process of characterisation. A high fee for the contractual benefit may, however, be just that – a high fee for the additional contractual benefit. [26] Justice Middleton made the following additional remarks about considerations relevant to determining whether a contractual term imposes a penalty:31 The object and purpose of the penalty doctrine (controlling the use of extravagant or unconscionable terms) must always be kept in mind when determining the ultimate issue of whether a term is a penalty. Exceptions from freedom of contract, as the case law indicates, require good reason to attract judicial intervention in setting aside commercial bargains. This explains the high hurdle required in the case of a propounded penalty, such that it must be found to be “extravagant and unconscionable”. One starting point in considering whether a penalty has been imposed is to identify the commercial interests that are sought to be protected by the bargain reached between the parties. This can be achieved through a consideration of the language used by the parties, the circumstances addressed by the bargain, and the objects that the bargain intended to secure. [27] The Full Court’s decision about the over-limit fees was not appealed to the High Court, which was restricted to considering late payment fees and concluded that they did not constitute a penalty.32 The High Court’s reasons are not relevant to the issue before me. [28] The plaintiff here has, what appears to me on a preliminary view to be, a strong case that the clause in question clearly operates to grant an option to the defendant to reduce the length of the lease by over 50% in consideration of the repayment of Incentives that the plaintiff had provided to it as incentives to enter into a 5½ year lease, not the shorter lease that the defendant ultimately chose. There are prima facie good grounds for the court to find that the clause is simply the result of a fairly negotiated, even though possibly harsh, commercial bargain. The doctrine of penalties cannot be applied simply to relieve a person from the harsh consequences of a bargain freely entered into. The application for summary judgment therefore has some merit. [29] However, despite the comprehensive, helpful and persuasive submissions made by Mr Sams on behalf of the plaintiff, on balance I consider that the answer to the issue is not so clear cut that the defendant has no real prospect of successfully defending that part of the plaintiff’s claim. Unfortunately, the “tortuous path” in the development of the doctrine of penalties must continue and this case sits somewhere along that path. There is a real question whether the requirement to repay the Incentive is to be regarded as security for the performance by the defendant of its obligations under the lease for its full initial term, or in terrorem of those obligations and to dissuade it from exercising its option to terminate early, or as consideration for the choice granted to the defendant to terminate the lease early. At the time of the agreements, the defendant may well have considered that option to be to its benefit.33 [30] Additionally, having particular regard to the extract from the reasons of the Chief Justice in Paciocco appeal quoted above at [25], I consider that the circumstances 31 Paciocco appeal, [400]-[401]. 32 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525. 33 cf Paciocco trial, [38]. -- 9 of 10 -- 10 surrounding the creation of both the lease and the variation deed may well have a substantial bearing on the proper construction of clause 7 of the latter instrument. I am not satisfied that there is no need for a trial. [31] Therefore, the requirements for the grant of summary judgment have not been met. [32] There is another reason for not granting summary judgment. That is the state of the pleadings. As I said above, the plaintiff’s claim as pleaded is not for debt, but for damages for breach of contract. The claim for repayment of the Incentive is pleaded as a claim for damages for breach of the variation deed. Other parts of its claim (including for rent) are pleaded as damages for breach of the lease. In reality, all of these claims are for debts that it alleges to be due under one or other of the lease and the variation deed. That manner of pleading was one reason given by counsel for the defendant for opposing summary judgment and the treatment of the plaintiff’s claim as if it were for a debt rather than damages. [33] The defence, for its part, is very poorly pleaded and really needs to be completely rewritten. Although, on one reading, it may barely show arguable defences to the plaintiff’s various claims and it does plead that clause 7.2 of the variation deed gives rise to a penalty, it does not clearly identify the facts on which the defendant relies, nor the issues that it wishes to ventilate. In some respects, also, the manner of pleading may well (as the plaintiff contends) constitute deemed admissions of allegations that it appears to wish to dispute. [34] Thus, the real issues for determination in the proceeding are not clear. They are likely to be capable of clarification if both parties were to reconstitute their pleadings. [35] In the circumstances, I do not consider it necessary or helpful to deal with other parts of the plaintiff’s application, seeking orders concerning the pleadings. [36] I shall therefore dismiss the plaintiff’s application. I shall hear from the parties on costs and directions for the progress of the proceeding. -- 10 of 10 --