Gibson v McIntosh

Court of Appeal
Supreme Court

New South Wales

Case Name:	Gibson v McIntosh
Medium Neutral Citation:	[2015] NSWCA 112
Hearing Date(s):	23 April 2015
Decision Date:	23 April 2015
Before:	Leeming JA; JC Campbell AJA
Decision:	(1)  Summons dated 4 February 2015 dismissed with costs. (2)  Notice of motion filed 18 February 2015, dismissed with costs.
Catchwords:	PRACTICE – jurisdiction – defendants residents of New Zealand – plaintiff seeking to impugn agreement reached by defendants in New Zealand – no error shown in refusal of leave by primary judge – leave refused
Legislation Cited:	Bankruptcy Act 1966 (Cth), s 27 Cross-Border Insolvency Act 2008 (Cth), s 10 Supreme Court Act 1970 (NSW), s 101 Trans-Tasman Proceedings Act 2010 (Cth) Uniform Civil Procedure Rules 2005, r 11.4
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 The Age Company Ltd v Liu [2013] NSWCA 26; 82 NSWLR 268
Category:	Principal judgment
Parties:	Neville James Gibson (Applicant) Alexander David Kaheel McIntosh (First respondent) Bernard Joseph Drumm (Second respondent)
Representation:	Counsel: Applicant (In person) J Darams (First respondent)
File Number(s):	2015/35021
Decision under appeal:
Court or Tribunal:	Supreme Court of New South Wales
Date of Decision:	8 January 2015
Before:	Black J
File Number(s):	2015/4617

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

EX TEMPORE JUDGMENT

1. LEEMING JA:  The applicant, Mr Neville James Gibson, seeks leave to appeal from the interlocutory judgment, delivered ex tempore in the vacation on 8 January 2015, refusing to grant leave to proceed in a new proceeding 2015/4617 brought by him against two residents of New Zealand, Mr Bernard Joseph Drumm and Mr Alexander David Kaheel McIntosh. Mr McIntosh appeared when Mr Gibson’s summons for leave was heard and made submissions opposing the grant of leave. There is no evidence that Mr Drumm has been served (whether formally or informally). I return to the precise orders made by the primary judge and the question of parties below.

2. Mr Gibson was, and is, unrepresented. He is a plaintiff in another proceeding pending in this Court, being proceeding 2010/425027, in which on 7 November 2014 orders were made for a mediation in the following terms:

   “I order that the claims of each of the second and third plaintiffs against the defendants in these proceedings be referred to mediation. Such mediation is to take place in New Zealand at a time and place to be arranged as soon as practicable.”

3. The proposed defendants, Messrs Drumm and McIntosh, were parties to whom that order was directed. The first order sought by Mr Gibson in the 2015 proceeding is that they be…