Nand v Fuji Xerox Australia Pty Ltd

The appeal concerned Ms Nand and Fuji Xerox Australia Pty Ltd, with the matter heard by Leeming JA in the Court of Appeal of New South Wales. The dispute arose from an appeal brought by Ms Nand, purportedly as of right, following the summary dismissal of proceedings. Crucially, a sequestration order had been made against Ms Nand prior to the initiation of these proceedings, and an application for adjournment had been refused.

The central legal issue before the Court was the competency of Ms Nand's appeal. Specifically, the Court was required to determine whether an appeal could be brought as of right from a summary dismissal when the appellant was subject to a sequestration order, and whether the refusal of an adjournment impacted the validity of the appeal.

Leeming JA reasoned that the sequestration order rendered Ms Nand a bankrupt, and therefore she lacked the legal capacity to commence or prosecute proceedings without the leave of the court or the consent of her trustee in bankruptcy. As no such leave or consent had been obtained, the proceedings, and consequently the appeal, were incompetent from their inception. The refusal of the adjournment was a consequence of this fundamental lack of capacity.

Consequently, the Court ordered that the proceedings be dismissed as incompetent. Further, upon Fuji Xerox Australia Pty Ltd providing an undertaking not to enforce the order against Ms Nand's trustee in bankruptcy, Ms Nand was ordered to pay Fuji Xerox's costs of a specific notice of motion.