Tal v Carroll

[2004] NSWSC 718

CITATION:	Tal v Carroll & Anor [2004] NSWSC 718
HEARING DATE(S):	27 July 2004
JUDGMENT DATE:	11 August 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Master Harrison
DECISION:	(1) Leave to appeal the decision of Emmett LCM is refused; (2) The amended summons filed 24 March 2004 is dismissed; (3) The plaintiff is to pay the defendant's costs as agreed or assessed.
CATCHWORDS:	Leave to appeal interlocutory decision of Local Court Magistrate - substitute plaintiff - deed of assignment
LEGISLATION CITED:	District Court Act 1973 (NSW) - s 107 Local Court (Civil Calims) Act 1970 (NSW) - s 69 (2B) Local Court (Civil Claims) Rules 1988 (NSW) - Part 6 rr 10(2) & 11(1)(d)
CASES CITED:	Adam P Brown Male fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 In re the Will of F B Gilbert (decd) (1946) 46 SR (NSW) 318 May v Perpetual Trustees Queensland Limited [2000] NSWCA 354 Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (No 2) (1988) 165 CLR 452
PARTIES :	Eugene Tal (Plaintiff) Michaell & Peter Knudsen (Defendants)
FILE NUMBER(S):	SC 13273/2003
COUNSEL:	Mr P McDowell (Plaintiff) Mr A Diethelm (Defendants)
SOLICITORS:	Mr Gregory H Huskard, Haskard & Co (Plaintiff) Mr M Carroll, Carroll & Associates (Defendants)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	12635/1999
LOWER COURT JUDICIAL OFFICER :	Magistrate Emmett

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 11 AUGUST 2004

13273/2003 - EUGEN TAL v MICHAEL CARROLL &
ANOR
JUDGMENT (Leave to appeal interlocutory decision of Local Court Magistrate - substitute plaintiff – deed of assignment)

1 MASTER: By amended summons filed 24 March 2004 the plaintiff seeks firstly, leave to appeal against the order of Magistrate Emmett made on 13 November 2003 in proceedings No 12635/1999 whereby the defendants were substituted as plaintiffs in those proceedings; secondly, that the appeal be upheld and thirdly, that the order made by Magistrate Emmett be set aside. The plaintiff relied on the affidavit of Gregory Howard Haskard sworn 24 March 2004. The plaintiff is Eugen Tal. The defendants are Michael Carroll and Peter Knudsen, a firm of solicitors.

Background

2 In 1999 Dolman Bateman & Co Pty Limited commenced proceedings against the plaintiff in the Local Court. On 22 October 2001, in the absence of the plaintiff, judgment was entered for Dolman Bateman & Co Pty Limited. On 2 September 2003, the plaintiff filed a notice of motion seeking order that the judgment be set aside. At the hearing before the Magistrate a representative Carroll and Knudsen attended on behalf of that firm in its own right. The representative sought to have Michael Carroll and Peter Knudsen substituted for Dolman Bateman & Co Pty Limited as the judgment creditor in the proceedings. That application relied on the fact that Dolman Bateman & Co Pty Limited as judgment creditor had purportedly assigned the benefit of its judgment debt to Michael Carroll and Peter Knudsen on 24 June 2002.

3 On 13 November 2003 the Magistrate ordered that leave be granted such that Carroll & Knudson be substituted as plaintiff pursuant to the assignment of the debt by the plaintiff by way of deed dated 24 June 2002 pursuant to Part 6 rr 10(2) and 11(1)(d) of the Local Court (Civil Claims) Rules 1988 (NSW) (LCR). The matter was adjourned to 27 November 2003 to enable the plaintiff to file and serve evidence in reply with no order as to costs. The plaintiff’s motion to set aside judgment is still on foot and has not yet been determined.

Whether leave should be granted

4 Section 69(2B) of the Local Courts (Civil Claims) Act 1970 (NSW) provides that an appeal against an interlocutory order does not lie to this court except by leave. As to whether leave should be granted, the Court may consider firstly, whether substantial injustice would result if leave was refused supposing the decision is wrong; and secondly, that leave is usually not granted where the interlocutory order does not determine the rights of the parties, the order would usually be an exercise of discretion on a point of practice or procedure and not one where the court would readily grant leave - see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, at 177, 180; In re the Will of F.B. Gilbert (decd) (1946) 46 SR (NSW) 318 at 323 and Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (No 2) (1988) 165 CLR 452 at 458.

5 The difficulty in the present appeal is that the named plaintiff in the Local Court is Dolman Bateman & Company who since the deed of assignment has no interest in pursuing these proceedings. It is Michael Carroll and Peter Knudsen, the assignees, who are interested in being heard in relation to set aside judgment and have an interest in the outcome of these proceedings. Currently they are a party to the Local Court proceedings and have an interest in being heard as to whether the judgment should be set aide. The determination of this issue raised on appeal does not finally determine the rights of the parties.

Grounds of appeal

6 The grounds of appeal are that the Magistrate erred in law when she made an order granting leave to Carroll and Knudson to be substituted as plaintiffs pursuant to the assignment of debt by the plaintiff by way of deed dated 24 June 2002 pursuant to Part 6 rr 10(2) and 11(1)(d) of the LCR.

The Local Court Rules

7 Relevantly Part 6 r 10(2) of the LCR provides:

“(2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the court may make orders for the addition, removal or rearrangement of parties and may make orders for the further conduct of the action.”

and Part 6 r 11 of the LCR relevantly provides:


“Further conduct of action

(1) Without limiting the generality of the powers of the court under rules 8–10, orders under those rules for the further conduct of the action may include orders relating to:
…
(d) substitution of one party for another party or a former party.”

8 The counterpart of rules Part 6 rr 10(2) and 11 are respectively District Court Rules 1973 (NSW) (DCR) Part 7 rr 10(2) and 11.

9 The plaintiff referred to May v Perpetual Trustees Queensland Limited [2000] NSWCA 354. May refers to the District Court counterparts of the LCR Part 6 rr 10(2) and 11. The facts in May are that on 9 July 1998 Garling DCJ gave judgment in favour of Perpetual Trustee Queensland Limited against Kirk May and Kirk May Pty Limited, the former judgment debtor who was the current claimant. On 6 December 1999 Phegan DCJ refused to set the judgment aside. On 15 September 1998, that is, after judgment but before the application to set the judgment aside, Perpetual Trustees Queensland Limited assigned the benefit of its judgment debt to a company called Lismore Management Corporation Limited. On 18 September 1998 a certificate of judgment was issued.

10 On 25 February 2000 Perpetual Trustees Queensland brought a motion that the order taken out be amended to have its name changed from Perpetual Trustees Queensland to Lismore Management Corporation. The notice of motion relied solely upon DCR Part 7 Rule 10(2). The order made by Sinclair DCJ was an order in effect striking Perpetual Trustees Queensland Limited’s name off the certificate and adding the name of Lismore Management Corporation Limited to the certificate.

11 In May, Meagher and Priestley JJA agreed that the District Court Judge did not have power under Part 7 r 10(2) of the DCR nor did he have the power generally to make the orders that he did. This is because an action commences with a statement of claim and ends up with a judgment. When the plaintiff obtains a judgment in his or her favour, his or her cause of action is extinguished and becomes merged in judgment. According to their Honours, the words “for the further conduct of the action” as put in Part 7 r 10(2) of the DCR should be taken as referring to the conduct of the action until judgment. The words “for the further conduct of the action” appear in both Part 6 rr 10(2) and (11)(d) of the LCR. Priestley JA then referred to s 107 of the District Court Act 1973 (NSW), which refers to enforcement of a judgment by way of a writ of execution but for present purposes does not assist.

12 As previously stated, the factual situation is not identical to May. Unlike May proceedings the subject of this appeal are on foot because the motion to set aside judgment has not been heard. At this stage the judgment is still in existence. However it seems that the rationale of the judgment in May is applicable and that Part 6 rr 10(2) and (11) of the LCR do not apply. If they do not apply then the party who has an interest in the outcome of these proceedings cannot be heard unless some other rule applies. This may be an avenue open to the current plaintiff. However, this conflicts with the principle that a person likely to be affected by order has a right to be heard. The decision appealed against is an interlocutory one. As the order currently stands, the parties interested in the outcome of the motion will be heard. The determination of this appeal will not finally determine the matters in dispute between the parties. I am not persuaded that a substantial injustice results supposing the decision is wrong. Leave to appeal the decision of Emmett LCM is refused. The amended summons filed 24 March 2004 is dismissed.

13 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

The Court orders:

(1) Leave to appeal the decision of Emmett LCM is refused.

(2) The amended summons filed 24 March 2004 is dismissed.

(3) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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Last Modified: 08/16/2004