JUDGMENT No. . 25-1/.WSsectaon IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY } QLD G174 of 1988 GENERAL DIVISION ) 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 ORDER: 28 JUNE 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the application for an order that certain machines in the possession of the first respondent be delivered by the first respondent to the receiver of the second respondent on the basis of an undertaking to return them promptly to New Zealand, be adjourned to a date to be fixed on application to the Registrar; 2. there be no order as to the second respondent's costs; 3. the first respondent's costs be its costs in the proceedings. NOTE: Settlement and entry of Order 36 of the Federal IN THE FEDERAL COURT OF AUSTRALIA ) QURENSLAND DISTRICT REGISTRY ) QLD G174 of 1988 GENERAL DIVISION ) BETWEEN: RIGA'L UNIVERSAL LOADERS PTY LTD Applicant AND: CROSS HYDRAULICS PTY LID First Respondent AND: RAYNER STEEL LIMITED Second Respondent PINCUS J. 28 JUNE 1988 EX TEMPORE REASONS FOR JUDGMENT In this matter the applicant has filed a notice of motion for interlocutory relief. On the matter coming on for hearing, Mr Carter, who appeared for the applicant, sought what was in effect partial final relief. The relief which Mr Carter asked for was an order that certain machines in the possession of the first respondent be delivered by the first respondent to the receiver of the second respondent, on the basis of an undertaking to return them promptly to New Zealand. Counsel for the first respondent, Mr Andrews, has appeared and argued that this relief should not be given 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 1n the machines should not be litigated this morning, particularly without any notice. The question of the regularity of the procedure adopted need not be discussed, but it is clear that 1t is a somewhat unusual course to confront a respondent with an application for even partial final relief without any notice when 1t thought, with some justification, that it was facing, at most, an application for interlocutory relief. The procedural obstacles, however, may (and in my opinion, should) not stand in the way of this, as it seems to me, convenient disposition of the case 1f 1t is correct, as 1s argued on behalf of the applicant and the second respondent, that the matter 1s so clear that any resistance on the part of the first respondent must be frivolous. I find it unnecessary to deal in detail with the evidence on the substantive question, 1n view of the conclusion which I have reached and will shortly state, but 1t 1s necessary to mention some of the matters raised by Mr McGill. Mr McGill argues that there cannot be any sort of security held by the first respondent in respect of the machines because of what 1s said in an affidavit made by Mr Thomas Burrows and filed on 24 May. In para.7 of that affidavit he stated, in effect, that an arrangement was made between the two respondents under which the machines were to be stored at the premises of the first respondent, and they would be sold during that period of time, and the proceeds of sale were to be partially paid in discharge of a debt owed to the first respondent. Mr McGill points to the fact that in para.17 of the same affidavit it is stated that the first respondent claims no proprietary interest in the loaders. Certainly, aif 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 affidavit used the expression "proprietary interest" ina sense narrower than that which is conventional. It 1s then pointed out by Mr McGill that in the most recent affidavit filed on behalf of the first respondent, Miss Robyn Lyons, a solicitor, deposes to the fact that Mr Burrows has told her that after a certain letter was written, the parties had a conversation in which it was agreed that 1f payment was not made by 20 May, the machines were to be sold by the first respondent and the debt owing to the first respondent paid from the proceeds of sale, with the balance to be remitted to the second respondent. Mr McGill's point, and it has some force, is that that arrangement, if 1t was made, must have been made before the affidavit of Mr Burrows which was filed on 24 May, having been sworn on 23 May, and it does not appear to find any mention there. It 1s in my opinion, 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, like 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 mentioned. Mr Andrews says that the application made by Mr Carter should be adjourned to trial. It may be that having considered my reasons today, and the whole matter, Mr Carter might prefer (having precisely today defined the question he wants determined) to seek an order that that relief he granted finally on proper notice before the trial. It therefore seems to me convenient to preserve the possibility, which seems to me to be an attractive one, of getting rid of the whole case in the interests not only of the Court but of all the parties, by determining this preliminary question. It seems to me desirable to preserve that possibility and I therefore propose to adjourn Mr Carter's application to a date to be fixed on application to the Registrar. That may produce the result that it is not brought on before the trial, but it leaves it open to Mr Carter to seek to have it brought on before the trial if he sees fit. The orders for costs will 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. A certify that this and the HL preceding Pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus f , frgla anys Associate Dated 28 Sune sage