The Court refused to exclude the Fuel Companies' counterclaim and equitable set-off defence from the trial of CAPL's claim for unpaid licence fees. Cooper J held that common issues (particularly whether the 1987 Lease as varied and 1994 Licence remained on foot) arose in both the claim and counterclaim, creating overlap in evidence and risk of inconsistent findings if tried separately. The Court emphasised that excluding an arguable equitable set-off defence on convenience grounds — particularly where the set-off may overcome limitation period defences — would cause significant prejudice to the defendants, and that the purported efficiencies of separate trials were not clearly made out on the evidence.
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