HASTIE v NIXON t/as MONTEITH WOOLS [1990] NSWCA 87

HASTIE v NIXON t/as MONTEITH WOOLS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER JA 3 September 1990

[1990] NSWCA 87

Meagher JA In this matter, in an action commenced in the District Court, Mr Nixon sued the defendants, one of whom was a Mr Hastie, for judgment. In the course of those proceedings he (Mr Nixon) took out a motion for summary judgment which was successful. The defendant, in the District Court proceedings, Mr Hastie, has now purported to appeal as of right to this Court against his Honour's entry of summary judgment.

Since the present proceedings have commenced here he has also taken out further proceedings in the District Court to set aside the summary Judgment.

The respondent in this Court, who is the plaintiff in the District Court, has moved this Court for inter alia an order that the appeal purportedly instituted be struck out.

The question concerns the ambit of the decisions of this Court in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86, Frazer Credits Pty Ltd v Osberg Elsen (1978) 1 NSWLR 21 and Elcalza v Superior General of the Order of Sisters of Charity, (NSW Court of Appeal, unreported, 8 April 1987).

Those decisions obviously are binding on me and it is not sought by the respondent to re-argue them. Bearing in mind the date of the decision in Clutha Developments, it would doubtless be an unprofitable exercise to seek to re-argue them.

Those cases decide that the right of appeal from the District Court to the Supreme Court lies only in an action, but not in a decision in proceedings ancillary to an action. In one case, the proceedings were to set aside a default judgment; in the other two cases they were proceedings for an extension of limitation.

In none of the three cases was the Court concerned with a motion for the entry of summary judgment. However, the claimant in the present motion, the plaintiff in the District Court, has urged upon me that the ratio of the cases is that the distinction between an action and proceedings ancillary to an action is as this Court has said, that an action is a complaint initiated by a statement of claim in which a claim is made for a sum of money and which ends, if successful, in judgment for the recovery of such amount as the Court may find to be due. That form of language was based on the decision of this Court in Martin v O'Riley 14 SR 277 and was specifically adopted by McHugh JA with the concurrence of his brethren in the Elcalza Case.