Scott, W.R. v Beneficial Finance Corporation Ltd (ACN 007 597 202)

[1993] FCA 757

757 1 9 3 .

JUDGMENT No. .,........ , .... ,.. .... ,., .....

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DMSION	1
GENERAL DMSION	No. NG699 of 1993

BETWEEN: WWTER ROBERT SCOTT

RECEIVED

AND:  BENEFICIAL FINANCE CORPORATION

FEDERAL COURT OF

I

AUSTRAUA

PRINCIPAL LTMITED (ACN 007 597 202)

i

1

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Coram:	Beazley J
Place:	Sydney
Date:	15 September 1993

EX TEMPORE REASONS FOR JUDGMENT

1

Application is made by Walter Robert Scott to restrain the respondent in these

I	proceedings, Beneficial ~ i G n c e Corporation Limited, from taking any further
proceedings in the Supreme Court of New South Wales pending the hearing of this
matter. The reference to the proceedings in the Supreme Court of New South Wales
is a reference to proceedings number 50418 of 1992 commenced by Beneficial
I	Finance Corporation Limited in the Commercial Division of the Supreme Court of New South Wales against Mr. Scott, the applicant in this court.
The basis of the application is that Mr Scott has a claim against Beneficial Finance
two companies of which he was a director, Shelldale Corporation Pty Limited and Corporation Limited arising out of agreements entered into on 10 December 1986 by
Golden Ponds Corporation Pty Limited and guarantees which he, Mr Scott, gave
personally in respect of the borrowings by those companies. Those borrowings were
subject to variations on a number of occasions up to and including 1989. In addition, the claim arises out of a further borrowing by those companies and guarantees by Mr Scott of those borrowings on 27 May 1991. The essence of the claims made against
Beneficial Finance is that the various loan agreements were unconscionable and were
entered into as a result of misrepresentations made by officers of Beneficial Finance.
The proceedings in the Supreme Court were commenced by summons filed on 28
September 1992 and served upon Mr Scott pursuant to an order for substituted
service on 3 December 1992. Those proceedings have been the subject of 14 directions hearings in the commercial division, during which time Mr Scott was
represented by a solicitor and counsel. During the course of those various directions hearings, opportunities were given to Mr Scott to file defences and cross-claims.
While those opportunities were avalled of, although not always in accordance with the
orders made, they have eventually resulted in Giles J making orders that the cross- claim be taken to be removed from the file or alternatively struck out, and that
paragraphs 12 to 15 of that part of the document purporting to be a defence be
struck out, so that the matter is to proceed before the court on the basis of paragraphs 1 to 11 of the defence document. I should add at this stage that the
matter is set down for heamg in the Supreme Court on Wednesday 22 September 1993, that date having been set about 4 months ago. There is no issue between the parties but that the claims made 'in the statement of claim in this court could have been raised by Mr Scott in the Supreme Court proceedings. In other words, there was no jurisdictional bar to his doing so, the only
bar having arisen as a result of orders made by the Supreme Court in relation to the
conduct of the proceedings.
There is nothing new to which counsel for the applicant has been able to take me
which would make this an appropriate case for this court to interfere with what are the proper processes of the Supreme Court. In other words, there is no discretiona~y matter to which he has directed my attention which makes it appropriate for me to interfere with orders made by the Supreme Court, and its case management
procedures. In those circumstances I refuse the application.

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I order that the applicant pay the respondent's costs of the motion.

I certify that this and the preceding 2 pages are a true copy of the Reasons for

Judgment herein of her Honour Justice Beazley.

Counsel for the Applicant:	Mr. J. McGrath
Solicitors for the Applicant:	John Dowling
Counsel for the Respondent:	Mr. P. Wood
Solicitors for the Respondent:	Mallesons Stephen Jaques
Date of hearing:	15 September 1993