Menzies v Paccar Financial Pty Ltd (No 5)

[2014] NSWCA 258

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Menzies v Paccar Financial Pty Ltd (No 5) [2014] NSWCA 258

Hearing dates:

On the papers

Decision date:

05 August 2014

Before:

Emmett JA; Leeming JA; Sackville AJA

Decision:

1. Vacate order 1 made on 1 July 2014.

2. Appeal dismissed with costs.

[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.]

Catchwords:

APPEAL - final orders postponed pending non-parties advising whether they wished to be joined or heard - non-parties not seeking to be joined or heard - final orders made

Cases Cited:

Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210

Category:

Procedural and other rulings

Parties:

Ian David Menzies (First appellant)
Colleen Anne Menzies (Second appellant)
Paccar Financial Pty Ltd (Respondent)

Representation:

Counsel:
First appellant in person and on behalf of the second appellant
P Newton (Respondent)
Solicitors:
Mills Oakley Lawyers (Respondent)

File Number(s):

2013/153139

 Decision under appeal 

Citation:

[2013] NSWSC 772

Date of Decision:

2013-06-13 00:00:00

Before:

Harrison AsJ

File Number(s):

2010/377702; 2011/176144

Judgment

1. THE COURT: By its judgment published on 1 July 2014, the Court determined that, subject to the question of joinder of the States of New South Wales and Victoria being resolved, the Menzies' appeal should be dismissed. The Court made the following orders:

"1. Stand the matter over until 9:30 am on 30 August 2014 before a Judge of the Court.

2. Grant liberty to Paccar to file and serve an affidavit annexing the responses of the Attorney General of New South Wales and the Attorney General of Victoria (or of their officers or agents) to Paccar's notification of the liquidator's disclaimer and of these proceedings.

3. The Court notes that if such an affidavit is filed and served by Paccar before the expiration of 28 days from the date of these orders, and the affidavit shows that neither New South Wales nor Victoria wishes to be joined to the proceedings or to be heard on any issue in the proceedings, the Court will order without a further hearing that the Menzies' appeal be dismissed and that they pay Paccar's costs of the appeal."

1. The Court's reasons referred to a submission that the effect of the liquidator's disclaimer was that ownership of the Equipment vested in the Crown, in which case either the Commonwealth or the relevant State should have been joined: at [15] and [95]. The Court referred at [98] to evidence that ASIC, representing the Commonwealth, held the view that disclaimed property did not vest in it or the Commonwealth, but that the position of the States was unclear. The Court's reasons explained at [105] that if New South Wales and Victoria advised that they had no interest in the Equipment and they did not wish to be heard, then the appeal could be resolved without their being joined as a party. Otherwise, including if there was no response within a reasonable period, it would be necessary for Paccar to join them as parties, and the Court's orders contemplated that the proceeding would be relisted before a single judge some two months subsequently, in order to determine the future conduct of the appeal.

1. In compliance with those orders, Paccar has filed two affidavits. The first annexes a letter dated 7 July 2014 from the Secretary of the Department of Justice of the New South Wales Government which states that:

"The State Crown does not have an interest in intervening or otherwise being joined in the proceedings.

However, only if the Court of Appeal is minded to make orders which would vest possession of the Trucks in an emanation of the Crown, the State Crown would then seek to be heard on whether possession of the Trucks should vest in the Crown in the right of the Commonwealth or in the State Crown and on any related matters, before final orders are made."

1. The affidavit also explains the steps that had been taken to obtain a response on behalf of the Victorian Government Solicitor. The most recent communication, at the time the affidavit was sworn, was a letter dated 28 July 2014 from the Victorian Government Solicitor's Office advising that "we are continuing with our efforts to obtain final instructions" and "We will revert further as soon as we have obtained instructions".

1. Paccar's solicitor swore a further affidavit on 30 July 2014 annexing a letter from the Victorian Government Solicitor's Office, dated 29 July 2014, which relevantly provided:

"We advise that the State of Victoria does not have an interest in intervening or otherwise being joined to the Proceedings. However, if the NSW Court of Appeal is minded to make orders which would vest possession of the six trucks in an emanation of the Crown, the State of Victoria would then seek to be heard on whether possession of the six trucks should vest in the Crown in right of the State of Victoria and on any related matters, before final orders are made."

1. It will be seen that, in two minor respects, the position departs from that contemplated by the regime set out in the orders made on 1 July 2014. First, 29 days as opposed to 28 days, have elapsed since the date of the Court's orders before the responses from both States had been obtained. Secondly, the position of both States is the same: neither wish to participate in the appeal, unless the Court proposes to make orders vesting possession of the Vehicles in the Crown.

1. Nothing turns on those minor departures from what was noted in order 3 made on 1 July 2014. The only question in respect of which the States have expressed an interest in being heard is not a question which arises on the disposition of the appeal. No party proposes orders of the nature indicated by the States. It follows that natural justice has been accorded to the States of New South Wales and Victoria, and the appeal can be determined without their joinder or their otherwise being heard. There is no utility in the parties incurring further expense and delay. Accordingly, the Court will vacate order 1 made on 1 July 2014 and order that the appeal be dismissed with costs.

1. For completeness, it may be noted that Mr Menzies sent an email attaching further documentation to the Court on 29 July 2014. Nothing in that email suggests there is any utility in taking, or that he wishes the Court to take, any course other than that referred to above. To the contrary, Mr Menzies states his intention to bring an appeal in the High Court and notes that "that process can't be commenced until the proceedings are concluded in the New South Wales Court of Appeal". The orders made today achieve that result.

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Decision last updated: 05 August 2014