JAMES SIMPSON PTY LTD v WALGETT SPECIAL CO-OPERATIVE LTD and ANOR [1994] NSWCA 153

JAMES SIMPSON PTY LTD v WALGETT SPECIAL CO-OPERATIVE LTD and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 7 February 1994

[1994] NSWCA 153

Mahoney JA This is an application which comes before the court in rather unusual circumstances. The matter, as I understand, came before Handley JA on 4 February 1994. In consequence of his Honour declining to grant an ex parte injunction the matter comes before the court this afternoon. I am informed by Mr Ireland QC that the plaintiff in the proceedings below claims to have purchased from the first defendant (which I shall describe as "Walgett") certain grain. It applied for an ex parte injunction during vacation to restrain Walgett from dealing with the grain. The return of the proceedings came before Young J and Young J discharged the ex parte injunction and the other relief. Following the judge's order Walgett sold the grain to two other entities. The grain is held by the second defendant as bailee and it has no interest in these proceedings other than in that capacity.

Application was made to Handley JA for an order restraining dealing with the grain in a way inconsistent with the interests of the plaintiff. His Honour refused the application. The argument before me this morning is upon the basis of a summons issued pursuant to leave granted by Handley JA. That summons seeks declarations and orders for specific performance and orders in the form of injunctions. I do not purport to detail all the relief sought in that summons.

Application was made today by Mr Ireland QC on behalf of the plaintiff for an order restraining the grain being delivered by the second opponent, the bailee of it. The purchasers are not parties to these proceedings. Any order restraining the second defendant/bailee from dealing with the grain would directly affect their interests or might do so and might involve the second defendant in default. In those circumstances I did not see it appropriate that any relief be granted against the second defendant which would have restrained the proper dealing by the two purchasers, or suggested purchasers, with the grain. I do not mean by saying this to indicate any doubt as to the validity of the sale or the effect of that sale. This is a matter to be determined when, in the existing proceeding, the court decides where the title lies. I do not think the court should intervene at the moment to prevent those who purportedly have purchased the goods from Walgett from dealing with the goods in accordance with what appears to be their title.