Rigail Universal Loaders Pty Ltd v Cross Hydraulics Pty Ltd

[1988] FCA 347

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) QLD G174 of 1988
GENEWLG DIVISION	1

BETWEEN: RIGA'L UNIVERSAL LOADERS PTY LTD

Applicant

AND:  CROSS HYDRAULICS PTY LTD

First Respondent

AND:  RAYNER STEEL LIMITED

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: PINCUS J.

DATE OF O R D E R : 28 JUNE 1988

WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    the application for an order that certaln machines

in the possesslon of the flrst respondent be

delivered by the flrst respondent to the recelver

of the second respondent on the basis of an

undertaking to return them promptly t o New Zealand,

be ad~ourned to a date to be fixed on appllcatlon

Order 36 of the Federal

to the Registrar;

2.    there be no order as to the second respondent's costs;

3 . the flrst respondent's costs be its costs In the

proceedlngs.

Settlement and entry of

IN THE FEDERAL COURT OF AUSTRALIA )

~UEENSLAND DISTRICT REGISTRY 1 QLD G174 of 1988

GENERAL DIVISION )

B E T E E N :	RIGA'L UNIVERSAL LOADERS	PTY LTD
Applicant

AND:  CROSS HYDRAULICS PTY LTD

First Respondent

AND:  RAYNER STEEL LIMITED

Second Respondent

PINCUS J. 28 JUNE 1988

EX TEMPORE REASONS FOR JUDGMENT

In this matter the appllcant has filed a notice of

motlon for lnterlocutory rellef. On the matter comlng on for

hearlng, Mr Carter, who appeared for the appllcant, sought what

was In effect partlal flnal rellef.	The rellef whlch Mr	Carter
asked for was	an order that certain machines In the	possession of

the first respondent be dellvered by the flrst respondent to the

recelver of the second respondent,	on the basis of an undertaklng
to return them promptly	to New Zealand.

Counsel for the first respondent, Mr Andrews, has

appeared and argued that thls relief should not be glven	today,
but that the application for it should be put over to trial.	The
convenience of making the order sought cannot	be doubted, if It be
the case, as is argued by Mr Carter and Mr McGill	who appeared for
the second respondent, that the first respondent has no	interest
in the machines. Mr Andrews argues,	on the other hand, that the

question of his client's interest m the machines should not be

litigated this mornlng, partlcularly wlthout any notice.

The question of the regularity of the procedure adopted need not be discussed, but it is clear that It is a somewhat unusual course to confront a respondent with an applicatlon for even partial final relief without any notice when It thought, with

some justlficatlon, that it was	facing, at most, an	applicatlon
for lnterlocutory relief.	The procedural obstacles, however,	may
(and In my oplnion, should) not stand m	the way of this, as	it

seems to me, convenient disposition of the case If It is correct,

as 1 s argued on behalf of the appllcant and the second respondent,

that the matter 1s o clear that any resistance on the part of the

flrst respondent must be frlvolous.

I flnd it unnecessary to deal In detall wlth the

evldence on the substantive questlon, In view of the conclusion

whlch I have reached and wlll shortly state, but It 1 s necessary

to mentlon some of the matters raised by Mr McGill. Mr McGill

argues that there cannot be any sort	of security held by the flrst
respondent in respect of the machines because of what 1 s sald	in

an affldavit made by	Mr Thomas Burrows and flled	on 24 May. In
para.7 of that affidavit	he stated, In effect, that	an arrangement

was made between the two respondents under whlch the machlnes were

to be stored at the premises of the flrst respondent, and they

would be sold during that period of time, and the proceeds of sale

were to be partially pald in discharge of a debt owed to the first

respondent.	Mr McGill points to the	fact that in para.17 of the
same affldavit it is stated that	the first respondent claims	no
proprietary interest In the loaders. Certalnly, If	one	reads

para.7 together with para.17, one must be a little puzzled,

because para.7 does seem	to me perhaps to set up a claim of	such
an interest.	It may be	that the draftsman of the affidavlt used

the expression "proprietary Interest" in	a sense narrower than
that whlch is conventional.

It 1 s then pointed out by Mr McGlll that in the most

recent affidavit filed	on behalf of	the first respondent, Mlss
Robyn Lyons, a solicltor, deposes	to the fact that	Mr Burrows has

told her that after a certaln letter was wrltten,	the parties had
a conversatlon in which it was agreed that	If payment was not made
by 20 May, the machines were to be sold	by the flrst respondent

and the debt owing to the first respondent pald from the proceeds

of sale, with the balance to be remitted to the second respondent.

Mr McGill's point, and it has ome force, 1 s that that

arrangement, If It was made, must have been made before the

affidavlt of Mr Burrows whlch was filed on 24 May, having been

sworn on 23 May, and it does not appear to find any mentlon there.

It 1 s in my opmion, however, clear that it would be wrong	of the
Court to attempt to resolve the issue of	the first respondent's
security interest,	if any, finally on such an application as this.

It is undoubtedly within the power of this Court, llke

other courts, to determine a question arising in a case	finally
without deciding the whole case, but such	a course is unusual and

- whereas I would not hesitate to do it if I were convinced that it was correct - I am of the opinion that it should only be

engaged in on clear notice, and there is no such notice here. I

therefore propose to	accede to the application made by	Mr Andrews
to adjourn Mr	Carter's	application, the terms of which I have
rnentloned.

Mr Andrews says that the applicatlon made by Mr Carter

should be adjourned to trial. It may be that having considered my

reasons today, and the whole matter, Mr Carter mlght prefer

(having precisely today defined the question he wants determlned)

to seek an order that that relief be granted finally on proper

notlce before the trlal. It therefore seems to me convenlent to
preserve the posslblllty, whlch seems to me to be an attractlve
one, of getting rid of the whole case in the interests not only of

the Court but of all the parties, by determlnlng thls prellminary

question.	It seems to me desirable to preserve that posslblllty
and I therefore propose to	ad~ourn Mr Carter's appllcatlon to a

date to be fixed on applicatlon to the Reglstrar. That may

produce the result that it is not brought on before the trlal, but

it leaves it open to Mr Carter to seek to have	it brought on
before the trlal If	he sees fit.

The orders for costs wlll be:

1.    no costs of the second respondent;

2. as to the first respondent’s costs, those costs will be its

costs in the proceedings brought by the applicant.

1 m*fy that this and the 4 preceding

are a true copy of the reasons for

f igment herein of His Honour

Mr. Justice Pincus

J& Associate

Dafea 28 Tune l qgg