Nand v Fuji Xerox Australia Pty Ltd
[2014] NSWCA 294
•25 August 2014
Court of Appeal
New South Wales
Case Title: Nand v Fuji Xerox Australia Pty Ltd Medium Neutral Citation: [2014] NSWCA 294 Hearing Date(s): 25 August 2014 Decision Date: 25 August 2014 Before: Leeming JA Decision: 1. These proceedings be dismissed as incompetent.
2. Upon the undertaking proffered on behalf of Fuji not to take any step to enforce this order against the trustee in the bankrupt estate of Ms Nand, I order that she pay Fuji's costs of the notice of motion filed 11 July 2014.
[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: APPEALS - competency - appeal brought purportedly as of right from summary dismissal - sequestration order made prior to bringing of proceedings - adjournment refused - appeal dismissed as incompetent Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59
Supreme Court Act 1970 (NSW) s 101(2)(e)
Uniform Civil Procedures Rules 2005 (NSW), rr 51.9, 51.16Cases Cited: Asuzu v The Council of the New South Wales Bar Association [2012] NSWCA 406
Municipality of Woollahra v Sved (unreported NSWCA 24 July 1998)
Nand v Fuji Xerox Australia Pty Limited [2014] FCA 757
Nand v Fuji Xerox Australia Pty Limited [2014] FCCA 1300Category: Interlocutory applications Parties: Ms Sharda Nand (Applicant / Respondent on the Motion)
Fuji Xerox Australia Pty Ltd (Respondent / Applicant on the motion)Representation - Counsel: Counsel:
In person (Applicant / Respondent on the Motion)
Mr DL Cook (Respondent / Applicant on the motion)- Solicitors: Solicitors:
Polczynski Lawyers (Respondent / Applicant on the motion)File Number(s): 2014/71053 Decision Under Appeal - Before: Nicholas AJ - Date of Decision: 25 February 2014 - Citation: [2014] NSWSC 112 - Court File Number(s): 2011/398334
JUDGMENT
LEEMING JA: Before me is a notice of motion filed 11 July 2014 by Fuji Xerox Australia Pty Limited (Fuji) for summary dismissal of an appeal purportedly brought by Ms Sharda Nand by notice of appeal filed 26 May 2014 from a decision of Nicholas AJ given on 25 February 2014: [2014] NSWSC 112. Ms Nand, for her part, seeks for the motion to be adjourned, for some two or three months, in light of pending proceedings in the Federal Court of Australia to which I will return.
The decision of the primary judge followed a hearing on 3 and 4 February 2014. That was a hearing, according to his Honour's reasons, of Ms Nand's application to set aside a default judgment entered on 23 August 2012. His Honour dismissed the notice of motion, with costs. A notice of intention to appeal was filed on 7 March 2014, and a notice of appeal, as I have said, on 26 May 2014. No point has been taken about the notice of appeal being, on its face, outside the period permitted by rr 51.9 and 51.16 of the Uniform Civil Procedures Rules 2005 (NSW). However, by letter dated 13 June 2014 Fuji's solicitors stated, after a complaint that the notice of appeal had not been served promptly upon them, that:
"Because the [decision of Nicholas AJ] was an interlocutory decision, the notice of appeal had to also be accompanied by an application for leave to appeal. Without such an application, and proper grounds for leave to be granted, your appeal is incompetent. Even if leave were to be granted for you to press your appeal, the notice of appeal has no prospects of success as it identifies no error in the [decision of Nicholas AJ]."
There was debate before me as to when Ms Nand received a copy of the affidavit of Mr David John Edney affirmed 8 July 2014, on which Fuji relied. However, it is plain from Ms Nand's written presentation to me that she was before today aware of the need to seek leave in order to appeal from the decision of Nicholas AJ. She, correctly, acknowledged that an appeal does not lie as of right from his Honour's decision.
His Honour's decision was interlocutory and therefore, by reason of s 101(2)(e) of the Supreme Court Act 1970 (NSW), an appeal lies only if there is a grant of leave. Accordingly, the concession made by Ms Nand was one properly made, and I accept it.
Fuji pointed to Council of the Municipality of Woollahra v Sved (unreported NSWCA 24 July 1998) directing persons faced with a formal objection to the competency of their appeals should ensure that an application for leave is "duly made prior to any contested competency application". That decision was more recently applied by Ward JA in Asuzu v The Council of the New South Wales Bar Association [2012] NSWCA 406 at [40].
Whenever it be the case that the objection to competency was brought to Ms Nand's attention, it undoubtedly took place prior to today. Even so, there is no application for leave to appeal. Ms Nand has said from the bar table that she has instructed a solicitor to prepare (as I heard her - I may be slightly inaccurate about this) both (a) proposed amended grounds of appeal and (b) an application for leave. Nothing I do today will prevent Ms Nand, if she so wishes and is so advised, to bring an application for leave to appeal, aspects of which would include the history to date of the proceedings in this Court.
However, the position before me is that there is an incompetent purported invocation of this court's appellate jurisdiction. There is no good reason, so far as I can see, to accede to Ms Nand's application for an adjournment, in those circumstances. Her application is unsupported by any evidence, and indeed, the background to which I am about to turn, strengthens my conclusion that the consideration of ss 56-59 of the Civil Procedure Act2005 (NSW) require me to accede to Fuji's application.
I referred earlier to the pending proceedings in the Federal Court. On 28 April 2014, a sequestration order was made in respect of Ms Nand's estate. That order was the subject of review by Raphael J of the Federal Circuit Court of Australia, who dismissed Ms Nand's application on 16 June 2014: Nand v Fuji Xerox Australia Pty Limited [2014] FCCA 1300. However, proceedings consequent upon that sequestration order have presently been stayed following a decision of Yates J of the Federal Court of Australia in Nand v Fuji Xerox Australia Pty Limited [2014] FCA 757. I have been told that the appeal from Raphael J's decision is listed for hearing in the Federal Court in early September.
There is also evidence before me that the trustee of Ms Nand's bankrupt estate is aware of the proceedings in this Court, that she did not obtain his authority to commence an appeal, and that he does not oppose the dismissal of her appeal (without prejudice to any appeal rights that the trustee may have in respect of such dismissal).
Although the administration of Ms Nand's estate is presently stayed, the effect of the sequestration order remains on foot. At the time a notice of appeal was filed in this Court, Ms Nand's property (speaking generally) vested in her trustee in bankruptcy. That is a further matter strengthening the conclusion I have already reached that it is inappropriate to do other than to dismiss the notice of appeal for want of competency.
Fuji also invited me to dismiss the notice of appeal on the basis that it was embarrassing or vexatious. It is not necessary for me to express any views upon the merits of the appeal, save only to say that in her oral submissions before me, and repeatedly, Ms Nand claimed not to have signed the guarantee which was the subject of the default judgment and the decision of Nicholas AJ. That claim was made without evidence, and is quite different from what is recorded in his Honour's judgment at [39], where his Honour states:
"Mrs Nand accepted she signed the guarantee, but alleges she is not bound by it. In summary her case is that prior to signing the document Raju represented to her that it was an application for shares in print media and, induced thereby, she signed it in the belief that it was."
For those reasons, I make the following orders:
1. These proceedings be dismissed as incompetent.
[Discussion as to costs]
2. Upon the undertaking proffered on behalf of Fuji not to take any step to enforce this order against the trustee in the bankrupt estate of Ms Nand, I order that she pay Fuji's costs of the notice of motion filed 11 July 2014.
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