Twigg v Twigg

[2021] NSWCA 38

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Twigg v Twigg [2021] NSWCA 38
Hearing dates:	1 March 2021
Date of orders:	1 March 2021
Decision date:	01 March 2021
Before:	Brereton JA
Decision:	Respondent’s Notice of Motion of 1 March 2021 dismissed with costs
Catchwords:	CIVIL PROCEDURE – Court of Appeal – Notice of motion – Interpretation of orders staying proceedings – Reasonable use of a motor vehicle and caravan – Where declaratory, not injunctive, relief sought – Where use was for service, repair, and camping – Motion dismissed
Category:	Procedural rulings
Parties:	Maxwell James Twigg (First Appellant / Respondent) Twigg Landfill Pty Ltd (Second Appellant) Byron Bay Beach Hotel Properties Pty Ltd (Third Appellant) Twigg Consulting Pty Ltd (Fourth Appellant) B Bay H Pty Ltd (Fifth Appellant) Twigg Investments Pty Ltd (Sixth Appellant) Maly Holdings Pty Ltd (Seventh Appellant) Twigg Property Development Pty Ltd (Eighth Appellant) Twigg Motor Sport Pty Ltd (Ninth Appellant) Vision Motor Sport Pty Ltd (Tenth Appellant) Twigg Motor Racing Pty Ltd (Eleventh Appellant) Surf Street Holdings Pty Ltd (Twelfth Appellant) W & E Twigg Pty Ltd (Thirteenth Appellant) Twigg Co Pty Ltd (Fourteenth Appellant) Diane Twigg (First Respondent / Applicant) Ipswich Landfill Pty Ltd (Second Respondent) Brooklyn Landfill & Waste Recycling Pty Ltd (Third Respondent) Twigg Plant Hire Pty Ltd (Fourth Respondent)
Representation:	Counsel: P Knowles (Appellants / Respondent) D K Smith (Respondents / Applicant) Solicitors: Radcliffs Lawyers (Appellants) Roberts and Partners Lawyers (Respondents)
File Number(s):	2021/5136

Judgment (ex tempore)

1. On 2 February 2021, Payne JA granted the appellants’ application for a stay upon terms which included the following:

“1. Upon the appellants giving the usual undertaking as to damages to the respondents and to the Court, subject to further order and the appellants’ compliance with the undertakings given in paragraph 2 below, orders 10, 11, 13, 15, 17 and 20-30 of the orders made by Ball J on 18 December 2020 are stayed until determination of this appeal.

…

3. The orders dated 3 June 2020, 18 June 2020 and 30 June 2020 and order 37 made on 18 December 2020 by Ball J be amended to provide that until further order or determination of this appeal and the reference referred to in paragraphs 18 to 31 of the orders dated 18 December 2020, the appellants, their servants or agents not transfer, dispose of, encumber or otherwise deal with (i) the assets of Twigg Investments No 2 investment portfolio including all bank accounts and (ii) the assets of Twigg Co save that:

…

(d) upon giving the respondents 5 business days’ prior notice, the respondents consent to the first appellant’s reasonable use of:

i. the Porsche motor vehicle purchased in January 2020 with registration XXXX XXX

ii. the 2020 Dodge Ram with registration XXXXX X

iii. the caravan; and

iv. the Holden Monaro restoration vehicle.”

2. On 22 February 2021, the solicitors for the appellants notified the solicitors for the respondents that the first appellant proposed to tow the caravan to its manufacturer at Albury for repair and service; that it would be necessary to use the Dodge Ram for the purpose; that the trip would commence on 1 March, with the appellant returning to the Gold Coast by 15 March; that the caravan would be stored with the repairer while being serviced and repaired; and that the appellant would in the meantime be staying in the Kosciuszko National Park, and using the Dodge Ram (which is a camping vehicle) for that purpose.

3. On the same day, the respondents’ solicitors objected to the proposed use.

4. The respondents caused the matter to be listed in the Court and, by notice of motion filed in Court today, seek the following relief:

1. Declaration that the first appellant’s proposed use of the motor vehicle to travel to Albury for replacement of solar panels is not “reasonable use” within the meaning of Order 3(d) dated 2 February 2021.

2. Costs.

3. Such further or other order as this court thinks fit.

5. Orders or terms structured as paragraph 3(d) is generally are intended to provide a notice period, so that the party receiving the notice has an opportunity to apply to the Court for an injunction to restrain the proposed use if dissatisfied with it. No application for an injunction of that kind has been made; rather, a “declaration” is sought. It was suggested that such a course was envisaged by the parties during the negotiations that culminated in the orders, but there was no evidence of those negotiations before me; nor is it likely that such evidence would have been admissible.

6. To my mind, declaratory relief is not appropriate. Effectively, it would amount to an advisory opinion, in advance of conduct taking place, as to whether the proposed conduct would or would not be within the particular term. It may be that the respondents could seek an injunction restraining the proposed use, in which case they would ordinarily be required to give an undertaking as to damages. In any event, they have not sought such an injunction.

7. Even if an injunction were sought, a number of considerations would, as presently advised, tend against granting one. First, these are recreational vehicles, and they are proposed to be used in a manner which one might think is quite conventional for such vehicles. Caravans commonly are hauled thousands of miles around Australia, and camping vehicles commonly are used to camp in the Snowy Mountains. There is nothing particularly unusual about what is proposed in this case.

8. The vehicles are comprehensively insured, and the respondents have been provided with details of the insurance. The work to be carried out on the caravan is work which the appellants say should be covered by warranty, but if not, the appellant agrees to pay for it himself, and not to make any restitutionary claim in respect of it nor to claim that it gives him any interest in the vehicles contrary to that which has been declared at first instance in favour of the respondents.

9. The respondents also raised the possibility that if the appellant does not pay for such work, then the vehicle may become the subject of a possessory lien in the hands of the repairers. The appellant’s solicitor has deposed on oath that the appellant will pay, and if he were not to do so and the caravan were not to be returned prior to the hearing of the appeal to commence in March, his standing to proceed with the appeal would be very vulnerable.

10. The Court orders that the notice of motion be dismissed with costs.

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Decision last updated: 17 March 2021