FEDERAL COURT OF AUSTRALIA

Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd

[2006] FCA 1297

PRACTICE AND PROCEDURE – damages for breach of warranties and condition on sale of heavy machinery – vacation of date for final hearing occasioned by respondent’s belated production on discovery of incorrect as-built drawings of subject machinery – order as to security for costs vacated on application of acquirer of machinery – liberty to apply for modified varied orders as to security for costs

Federal Court Rules Order 62 rule 3

Allstate Life Insurance Co & Ors v Australian & New Zealand Banking Group Ltd & Ors [1995] FCA 660 referred to

READYMIX HOLDINGS INTERNATIONAL PTE LTD AND PT READYMIX CONCRETE INDONESIA v WIELAND PROCESS EQUIPMENT PTY LTD

NSD 344 OF 2004

CONTI J

29 SEPTEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicants bring in respective drafts of short minutes of orders to give effect to reasons for judgment within fourteen days.

2.                  Directions as to future conduct of proceedings be heard at 9.30 am on 17 October 2006.

3.                  There be liberty to apply on seven days’ notice in any event as to final resolution of orders both as to costs and security consistently always with the reasons for judgment of even date.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Outline of principal proceedings contextually to present interlocutory disputes

1                     The principal proceedings were commenced on 15 March 2004 by application and statement of claim, and relate to claims brought by the corporately related or otherwise associated applicants Readymix Holdings International Pte Ltd (‘Holdings’) and PT Readymix Concrete Indonesia (‘PT’) (together referred to below as ‘Readymix’ unless inconsistent with the context) against Wieland Process Equipment Pty Limited (‘Wieland’) for damages for contravention of s 52 of the Trade Practices Act 1974 (Cth). Both applicants are corporately resident offshore. After the commencement of the proceedings, a substantial amount of affidavit evidence was filed by both Holdings and Wieland, following which there occurred the filing of an amended statement of claim on 29 April 2005, involving the addition of PT as a second applicant in the proceedings.

2                     By that amended statement of claim (‘A/S/C’), the following was pleaded by Readymix which I have summarised below:

(i)                  PT manufactured and supplied concrete and quarry products to the East Java markets and is a partly owned subsidiary of Holdings;

(ii)                Holdings conducted a ready mixed concrete, crushing and quarry business in the Asian region;

(iii)               Wieland supplied plant and equipment to the crushing and mining industry, and in particular a certain rock crusher machine called a Pegson primary crusher coded SLP 1100 (‘the first SLP 1100’), and also certain screening machines;

(iv)              at least in the years 2002-2003 Chemex Pte Limited (‘Chemex’) was a distributor for Wieland of plant and equipment to the crushing and mining industry in those markets;

(v)                in May 2002 Holdings decided to replace its existing Pegson primary crusher at PT’s quarry site in East Java;

(vi)              a decision was taken by Holdings to acquire a new rock crusher for PT’s use at that quarry site, which would involve cost savings;

(vii)             Chemex on behalf of Wieland proposed to Holdings the purchase of a new rock crusher and pursuant to an agreement made on 11 September 2002 (‘the Chemex Agreement’), that rock crusher (‘the first SLP 1100’), along with certain screening machines, were acquired by Holdings on behalf of PT and commissioned on site on 26 December 2002; and

(viii)           the first SLP 1100 failed to operate properly, and a dispute arose as to the reason for or cause of that failure; settlement of that earlier dispute was reached in or about February 2003.

3                     In the context of that settlement, Holdings agreed to purchase on behalf of PT from Wieland a replacement SLP 1100 (‘the second SLP 1100’). Readymix pleaded that such contract was made partly in writing (being written agreement bearing date 7 February 2003), partly oral and partly implied; to the extent oral, the contract was particularised as made between Messrs Nicholas and Jonathon Cocks on behalf of Holdings with Messrs Stuart Wieland and Steve Mellor on behalf of Wieland. To the extent implied, reliance was placed by Holdings upon s 20 of the Sale of Goods Act 1923 (NSW) and s 15 of the Sale of Goods Act 1895 (SA).

4                     It was further pleaded by Readymix that at the time of formation of the Chemex Agreement, Wieland knew that Holdings required the second SLP 1100 for the purpose of quarrying operations at its quarry site in East Java, and for the provision in particular of crushed rock therefrom for Holdings’ use in concrete production generally, and in order to enable Holdings to fulfil its obligations to supply crushed rock for the manufacture of readymix concrete, in particular, to the Surabaya Airport construction site.

5                     At a time not referred to in the A/S/S, but implicitly prior to February 2003, it was further pleaded thereby, additionally or alternatively, that in consideration of Holdings purchasing the second SLP 1100, Wieland warranted, collaterally to that contract of purchase, that the same had the capacity and would fulfil the purposes outlined in [4] above. Reference was made in that context to the following documents:

(i)                  an email dated 4 September 2002 from Mr Mellor on behalf of Wieland to Mr Nicholas Cocks on behalf of Holdings;

(ii)                various oral communications between Messrs Nicholas and Jonathon Cocks on behalf of Holdings and Messrs Wieland and Mellor on behalf of Wieland.

6                     Contractual conditions were pleaded by Readymix to have taken effect, implicitly in relation to the supply of the second SLP 1100, as to:

(i)                  reasonable fitness for the particularised purposes, pursuant to s 19(1) of Sale of Goods Act (NSW) ands 14(A) of the Sale of Goods Act (SA),in order to give business efficacy to the transaction of supply;

(ii)                merchantable quality, pursuant to s 19(2) of the Sale of Goods Act (NSW)and to s 14(b) of the Sale of Goods Act (SA), and in order to give business efficacy to that transaction.

7                     Contractual conditions taking effect collaterally were additionally pleaded by Readymix as to the capacity of Wieland for the fulfilment by the second SLP of those purposes as to reasonable fitness and business efficacy.

8                     It was next pleaded by Readymix that the second SLP 1100 was delivered by Wieland to PT and commissioned on or about 16 April 2003, yet the same was not fit for the purposes pleaded, nor was of merchantable quality, but was defective and ‘unmerchantable’. Reliance was placed by Readymix on affidavit evidence provided by Messrs Nicholas Cocks, Jonathon Cocks and Sulfan Hidayat. Additionally breach of the collateral conditions (in the nature of warranties) was pleaded by reason of the second SLP not being free from defects, but instead being defective and unmerchantable. What I have thus far summarised in terms of the subject matter of pleading averments were categorised by Readymix as the ‘initial representations’.

9                     The Readymix A/S/C further pleaded so-called ‘subsequent representations’ in relation to the second SLP 1100 supplied by Wieland, being first as to merchantable quality, secondly as to fitness for the purpose of crushing work required by Readymix’s third party contractual obligations relating to the East Java quarry site, and as to suitability for that use, and in that context as not requiring ‘anything other than servicing as suggested in [Wieland’s]… service manual’, thirdly as to meeting the working requirements of Readymix, and fourthly as having certain characteristics and features appearing in Wieland’s promotional media comprising its brochure, a certain newsletter, its website, its operating (ie service) manual, and a letter and five emails sent by Wieland to Readymix between 4 September 2002 and 1 August 2003. The representations to the extent made orally were particularised to be between Messrs Wieland, Mellor and Messrs Nicholas and Jonathan Cocks and as made between June 2002 and September 2003.

10                  Readymix further pleaded by the A/S/C reliance on the representations I have above summarised as having occurred in the course of Holdings entering into the contract to purchase the second SLP 1100 from Wieland, and thereafter the absence of merchantable quality, fitness for the purpose represented, unsuitability of the second SLP 1100 for its represented purpose of use, a shortfall otherwise in meeting the working requirements of Holdings and PT, and an absence of the specific characteristics and standard features represented by Wieland. Assertions were pleaded moreover by Readymix as to consequential loss and damage sustained by it. Alternatively, causes of action were pleaded by the Readymix A/S/C as to negligent misrepresentation, reliance and consequential loss and damage.

Circumstances giving rise to the present interlocutory dispute

11                  The proceedings were scheduled by the Court for the final hearing starting on 4 September 2006 of all issues raised by the pleadings. A great deal of affidavit evidence had been tendered by the parties during the years 2004 and 2005. Given the offshore location of the corporate residence of the Readymix applicants, security for costs had been earlier sought by Wieland, and thereafter the Court ordered on 30 September 2004 that Readymix provide such security, which duly took place. Discovery had also taken place and expert evidence had been filed by the parties in affidavit form. Moreover the parties had taken steps to mediate their differences, but without however any resolution of the present proceedings. Steps were taken by the parties during 2005 for the appointment of a court appointed expert, but that process also did not produce any resolution of the issues arising. The report of a prospective expert witness (Mr Better) was obtained by Readymix, and a copy was provided to Wieland on 30 March 2006. For the purpose of preparation of that report, the first SLP 1100 crusher was transported to Melbourne, the same being apparently identical, or virtually so, to the second SLP 1100 crusher. Moreover Wieland had also retained an expert Mr Tutin with a view to his attendance on Wieland’s behalf at the prospective mediation then in mutual contemplation and also apparently to obtain his report. That mediation was ultimately convened jointly by the parties on 3 August 2006, but was terminated without a concluded outcome.

12                  The applicants submitted that the Court was told at the directions hearing on 23 August 2006 by Wieland’s legal representative ‘that the respondent was likely to be unrepresented at the hearing’. Pursuant to that purported notification, there was sent by Wieland’s solicitors to Readymix’s solicitors late on that day a notice of ceasing to act. On 30 August 2006, Readymix sought by notice of motion an interlocutory hearing on 1 September 2006 for the purpose of obtaining the return, for cancellation, of the bank guarantee which Readymix had provided by way of security for Wieland’s legal costs as respondent. The applicants submitted during the interlocutory hearing on 1 September 2006 that it was not until the morning of that interlocutory hearing that the applicants were informed that Wieland would be represented at the final hearing scheduled to begin on 4 September 2006.

13                  Wieland ascertained belatedly, the absence of authenticity status and significance of the ‘as-built’ drawings relating to at least the second SLP 1100 crusher provided by Wieland to Readymix. A substantial sum of more than $50,000.00 had been earlier incurred by Readymix in favour of HRL Technology Pty Ltd (Mr Better’s company) for expert advice and assistance referrable to the ‘as-built’ drawings provided to Readymix prior to those authenticity issues so arising. The outcome of that extraordinary revelation of the absence of circumstances of authenticity relevantly attendant upon such drawings had radical consequences in terms of the redundancy of that expenditure incurred by Readymix.

14                  In the afternoon of 1 September 2006, an urgent interlocutory hearing in the Federal Court was convened by Readymix. I was informed by counsel thereafter retained by Wieland, that the final hearing of the proceedings, then due to commence on Monday 4 September 2006, would need to be vacated, and that the notice of motion of Readymix thus recently filed on 30 August 2006 for urgent interlocutory relief should be stood over, all of which duly occurred without opposition in the light of the prevailing circumstances. It was confirmed to the Court by Readymix that the ‘as-built’ plans for the crushing machine the subject of the proceedings as originally pleaded, and which had been provided by Wieland to Readymix earlier in January of this year, ‘… may not now be the “as-built” plans that [Wieland] alleges were extant for the crushing machine’. Readymix emphasised understandably that if so much was to be confirmed as Wieland’s position to be similarly adopted at the hearing, there would obviously need to be discovery by Wieland to Readymix of the authentic plans for the SLP 1100 crusher, and further that each of the respective expert witnesses may well need to revise their existing respective testimonies.

15                  Readymix also submitted that in the light of the late notification that Readymix’s evidence would be contested (or at least substantially so), the final scheduled hearing dates should be vacated so as to enable the applicants to make travel arrangements for their witnesses to travel from Indonesia and Singapore to Australia. Readymix also pointed to the likely consequences of inutility of its expert evidence by that time adduced, and of the costs thereof having become redundant, being costs which were estimated by Readymix to be in the order of $60,000.00. Mr Weaver as counsel recently retained by Wieland explained his understandable inability to make submissions of significant utility in the context of that extraordinary turn of events, and as to the need for him to become familiar with the complexity of the expert evidence, and with the implications of what had turned out to be incorrect and irrelevant drawings, yet upon the faith of the purported authenticity whereof Readymix had been preparing its case for hearing.

16                  In the result, I directed the parties on 1 September 2006 to file such further evidence, as was relevant to the radically altered circumstances of the litigation, and the hearing of the proceedings confined to interlocutory matters was stood over until 6 September 2006. In the events which thereafter happened, the hearing of those interlocutory proceedings did not take place until 12 September 2006.

17                  On 7 September 2006, Readymix filed and served the following processes against Wieland:

(i)                  an amended application for damages for breach of s 52 of the Trade Practices Act 1974 (Cth);

(ii)                an application, by way of amended notice of motion, for vacation of the orders against Readymix as to security for costs made on 30 September 2004 in favour of Wieland;

(iii)               an order that Wieland produce the authentic drawing and designs, and documents relating to the machine known as SLP 1100, by way of verified discovery;

(iv)              a claim for payment by Wieland of $56,198.65, representing the amount of costs and disbursements paid by Readymix to Mr Better for his expert assistance to Readymix albeit rendered in the context specifically of what became ultimately aborted mediation arrangements.

The interlocutory proceedings conducted on 12 September 2006 and the respective positions in summary of the parties then advanced

18                  On 12 September 2006, lengthy interlocutory proceedings took place over most of that day. The orders sought by the Readymix by further amended notice of motion filed in Court on that day, by way of consolidation of the original notice of motion filed on 30 August 2006 with the amended notice of motion filed on 7 September 2006, were as follows:

‘1. That order 1(c) of the 30 September 2004 orders as to security for costs be vacated.

2. That the Bank Guarantees provided to Rodd Peters, Lawyers pursuant to Orders 1(a) and 1(b) of the 30 September 2004 Orders be delivered up to the solicitor for the Applicants forthwith, for the attention of Mr Peter Smith.

3. An order that the Applicants’ costs thrown away by the vacation of the hearing which was to commence on 4 September 2006 (including the costs of 23 August 2006, 1 September 2006 and today) be paid by the Respondent on an indemnity basis and be taxable and payable forthwith.

4. The Respondent provide within 28 days verified discovery in accordance with order 15 rule 6 of all documents being drawings and designs of the machine known as SLP 1100 and documents relating to such designs or drawings.

5.                  Directions.’

19                  Prior to the interlocutory hearing on 12 September 2006, Readymix had foreshadowed, in the context of its submissions presented in writing to the Court on 1 September 2006, that ‘for the first time at 11.18 am today the applicants’ representatives were informed that the respondent proposed to appear and contest evidence at the hearing set to commence on Monday’. It was further contended that the late notification occurred ‘despite a persistent failure to respond to correspondence over a period of time relating to the hearing including queries in relation to whether the applicants’ witnesses were to be cross examined’. It was said further by Readymix that from what appeared comprehensively in the affidavit evidence of 23 August 2006 of its solicitor Mr Peter Smith as to the status quo of the proceedings, both existing and prospective, Wieland’s conduct in erroneously (albeit unintentionally) representing the incorrect plans as related to the subject equipment, had rendered wholly impracticable the hearing of the proceedings on the scheduled days in any event. No such proposition was gainsaid by Wieland.

20                  In the events which happened, the first of the orders set out in [17] above was made by the Court on 12 September 2006, and in addition I granted liberty to either party to apply on seven days notice for any interim relief that may arise for consideration. Evidence by affidavit was tendered by Readymix as to the fees incurred to date paid by HRL Technology Pty Ltd on behalf of Readymix concerning the investigation of the crusher and preparation of the expert reports of Mr Better. That affidavit, bearing the date 12 September 2006, stated that ‘[t]he total fees incurred by HRL as at 31 August 2006 amount to $52,937.09’; Mr Better was said to have entered upon the compilation of his report back in February 2006 on the basis of the incorrect drawings discovered and produced by Wieland to Readymix. Mr Better’s March 2006 report, assembled on the premise of the inaccurate as-built drawings, was apparently provided to Wieland’s solicitor on 20 March 2006. The report of Wieland’s expert witness Mr Paul Tutin, was served on 18 July 2006. Mr Better was requested to prepare a report in response to Mr Tutin’s report of the 17 July; that report, which was also premised on the ‘as-built’ drawings provided in February, was completed on the 22 August 2006.

21                  The dilemma which has been encountered by the parties, and which has led to the present interlocutory proceedings, is attributable, in part, to Wieland’s radical misapprehension as to what constituted the authentic ‘as-built’ plans for the crushing machine, and the mistaken reliance by Readymix upon their authenticity so induced. Nevertheless Wieland sought to contend that the context to the need for the adjournment was such as to exclude the notion that ‘one party is at fault… more than the other’, a proposition however which I am unable to accept as correct, as appears from the antecedent circumstances I have already summarised. Wieland contended in any event that ‘[i]f this matter is to proceed and it does proceed on the basis of a six-day hearing into the future, then all of that security [presently provided by Readymix] would still be… required’. Wieland acknowledged in any event that ‘there was a failure [on the part of Wieland] to notify which witnesses [of Readymix] would be required for cross-examination’ on behalf of Wieland, that being ‘… a difficulty I face in relation to the costs aspects’. In that regard, Wieland further acknowledged the more radical factor that ‘… it would appear as though the wrong drawings were originally provided’, but contended that Wieland’s expert witness Mr Tutin was ‘… of the view that the as-built drawings as opposed to the concept drawings do not take this issue very far,’ whilst further acknowledging that Readymix’s expert, Mr Better, had nevertheless postulated a different view.

22                  Wieland contended further that the cause of much of the difficulties the subject of the present interlocutory debate had not evolved by reason of any contumelious conduct on Wieland’s behalf, and that ‘a double punishment’ would be occasioned to Wieland if a variation to the order for security of costs in favour of Readymix was to be made, as well as an order as to costs ‘thrown away’ made in favour of Readymix. The difficulty with that contention is that Readymix’s costs thrown away are undoubtedly substantial, and Wieland has not offered to pay the same forthwith upon receipt of any reasonable assessment, or to make at least a significantly realistic payment pending independent assessment. Wieland acknowledged in any event that it would not be in a position to proceed to a final hearing for about six to eight weeks hence, and moreover that until Wieland’s expert witness Mr Tutin ‘can see the bearing he can’t say definitively whether it has been a failure of manufacture or a failure of maintenance’.

23                  Readymix rejected as unsupportable any suggestion to the effect that there was any measure of fault on its part in relation to the adjournment of the proceedings, being a submission which is I think to be substantially correct. Readymix drew attention to the affidavit of Readymix’s solicitor of 23 August 2006, which recounted the steps undertaken by Readymix, commencing from January 2006, to obtain Mr Better’s report on behalf of Readymix, relating of course to what was then mutually understood to have been authentic drawings of the SLP 1100 crusher, and to provide that report to Wieland. Readymix drew attention moreover to the requests made by Readymix to Wieland, commencing immediately upon the termination of the mediation on 3 August 2006, for confirmation or otherwise as to the status of the ‘as-built set of design manufacturing drawings as represented to [Readymix] on 31 January and 1 February 2006’, which confirmation was not forthcoming in the events which happened until very recently. Reference was also made by Readymix to its follow-up email of 9 August 2006 to Wieland for information inter alia as to the documentary evidence upon which Wieland would rely at the hearing, to which there was said to have been no response, and to Readymix’s subsequent email of 11 August 2006 concerning inter alia the ‘as-built’ drawings, to which there was said to have also been no response. In my opinion, the position so adopted by Readymix should be accepted, and that the pervasive or at least predominant reason for the unfortunate situation that has arisen, and the consequential need to abort the scheduled time for the final hearing, must be attributable essentially or substantially to Wieland.

24                  Readymix further emphasised that Mr Better prepared and sent to Wieland’s lawyers on 22 August 2006 a commentary on Mr Tutin’s report of 17 July 2006. Reference was also made by Readymix to Mr Smith’s affidavit evidence, where he indicated that the ‘final bank guarantee’ in the sum of $45,850 was expected ‘to arrive at my office tomorrow’. Mr Smith’s affidavit evidence concluded by indicating the prevailing dilemma occasioned by Wieland’s discovery of the wrong plans for the subject crusher, and as to the extent of further investigations therefore needed to be presently undertaken by Readymix, as follows:

‘33. The Applicant has served Affidavits sworn by 7 witnesses. Out of these witnesses all reside overseas other than Mr Better who is located in Melbourne. Without there being a narrowing of issues in dispute it is necessary for the Applicants to make arrangements for 4 to travel from Indonesia and 2 from Singapore. I am informed by Mr Nicholas Cocks that it is necessary for applications for Australian visas to be made immediately in order to give sufficient time for them to be processed.

34.              In the event that the Applicants believe that issues relating to design and manufacture are determinative of the issues raised in this case, it may be that the Applicants will not call many of these overseas witnesses.

35. It is impossible for the Applicants to make sensible forensic decisions concerning the conduct of their case when there exists any “confusion” as to whether the Applicants were misled about the provision of the ‘as-built’ drawings at the end of January this year.

36. If an allegation is to be maintained by the Respondents that different ‘as-built’ drawings are relevant it will be necessary for Mr Better to have access to the entirety of the design file and, in effect, start from scratch with a physical inspection of the Crusher in order to compare it with the alleged ‘as-built’ drawings. Even if these documents were provided today I am told by Mr Better that it would take at least 3 days for this inspection work to be undertaken.’

There is plainly force in Mr Smith’s foregoing prognosis, which was not the subject of cross-examination.

25                  As to the operation of Order 62 rule 3 upon the issues the subject of the current interlocutory proceedings, Wieland made the submission that ‘an order pursuant to O 62 r 3 whereby the Court exercises its discretion as to costs requires material sufficient to warrant a departure from the general practice that costs ordered in interlocutory proceedings should await the outcome of the proceedings’. Wieland addressed Readymix’s reliance on the observations of Lindgren J in Allstate Life Insurance Co. & Ors v Australia & New Zealand Banking Group Ltd & Ors [1995] FCA 660, where his Honour observed that ‘where litigation is complex and parties may face a delay in recovering their costs there exists a basis for consideration departing from the usual course’. Wieland contended nevertheless that ‘[t]he applicants in these proceedings have not pointed to any basis for suggesting that these proceedings will be excessively delayed’. Contrary to that contention by Wieland however, there is persuasive force in Readymix’s submission that ‘one is entitled to start with the proposition that the respondent, in the conduct of its defence, has caused egregious delay’ and that ‘the delay in the progress of the proceedings logically delays resolution of the proceedings when the applicants would, in the ordinary course, [be] entitled to the assessment of costs awarded in its favour’.

Conclusions

26                  I am of the view that Readymix is entitled to an order in its favour in relation to its costs thrown away by the postponement of the final hearing, inclusive of those costs of and incidental to the present application of Readymix the subject of the notices of motions of Readymix filed respectively on 30 August 2006, 7 September 2006 and on 12 September 2006, the scope whereof I would observe tend to overlap. Whether any category of legal costs incurred by Readymix otherwise than that of a party and party basis should qualify within the scope of the order for costs is a more difficult consideration. The costs of Readymix thrown away would appear to be in principle those relating to professional work undertaken and disbursements incurred as a result of steps implemented by Readymix’s legal representatives to arrange inspection of the SLP 1100 crusher then located in Melbourne and to obtain expert reports in relation thereto, including in principle costs relating to Mr Better’s fees and disbursements to the extent to which the same can rightly be described as thrown away, as well as costs associated with the vacation of the hearing. Whether the costs incurred of and incidentally to the mediation incurred by Readymix should be included is a moot point, but I would disincline in principle to include in any event costs of the intervening mediation.

27                  I am further of the opinion that in the exercise of the Court’s authority and discretion, pursuant to Order 62 rule 3 of the Federal Court Rules as to formulating orders as to costs at a stage of the proceedings prior to finalisation, Wieland should be ordered, in principle, to make payment forthwith of the costs the subject of the orders presently under consideration, I favour that outcome, notwithstanding that the principal proceedings are not of course concluded. My present estimate is that an amount equal to two thirds thereof would be appropriate, but I would in any event grant liberty to apply to either party on seven days’ notice should injustice or imponderable uncertainty be contended to arise in relation to any such quantification. I say ‘at least’ because the existing order as to security shall require revision in any event, so as to exclude quantification of the costs attributable to Wieland’s radical misunderstanding earlier discussed.

28                  It must inevitably follow from what I have recorded that orders should be made in principle in terms of or along the lines of those numbered 1 to 5 appearing in [18] above, subject in the case of costs orders to taxation or mutual assessment in the usual way, and to the condition that the applicants not be required to provide any substituted security at least in principle until satisfaction of the orders in their favour made against Wieland as foreshadowed in these reasons. I say in principle because if the status quo is to be restored to an extent which is fair and equitable to both parties in the context of the unfortunate events which have emerged, and which have further emerged since the hearing of the present interlocutory proceedings, it is conceivable that some modification may be required to the orders which I have presently foreshadowed in these reasons.

29                  I direct Readymix to provide to the Court and to Wieland’s counsel short minutes of the orders they propose in the light of these reasons, and the events which may have since happened since the hearing of the present interlocutory proceedings. I also direct Wieland to provide within the same time constraints the orders it would seek in the events which have happened and of these reasons. Of course if the parties reach mutual agreement in the meantime as to the terms of the proposed orders, the cost of further attendance at Court may well be avoidable. In any event, I would grant liberty to further apply to the Court at a time and date to be arranged with my Associate, given the complexity of the circumstances presently prevailing and what I have proposed as an appropriate way forward to a substantive hearing as early as conceivably and practically possible.

Associate:

Dated: 29 September 2006