MCINTYRE v BRIERLEY [1995] NSWCA 281

MCINTYRE v BRIERLEY

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 20 February 1995

[1995] NSWCA 281

Clarke JA. Mr McIntyre has proceedings on foot at first instance against Sir Ronald Brierley relating to the collapse of what was once described as the Adsteam empire. Last August he was ordered by the Master to file a statement of claim within a specific period. The order made was self executing in the sense that if he didn't comply the proceedings were to stand dismissed. Mr McIntyre has informed me that he did file a form of statement of claim two or three days late. Whether that is correct or not, the order no doubt took effect as at an earlier point in time. However, he appealed to Cohen J and sought to have the order set aside. Cohen J heard those proceedings and dismissed the appeal. Mr McIntyre has now filed a notice of appeal with appointment which does not set out any grounds. However, so far as I am aware the appeal is on foot.

In respect of that appeal, he has sought that this Court order that certain information be made available. Myunderstanding is that he has not formally made an application of this nature at first instance, and it is clear to me at the present time that this Court has no power to make the order sought and that, even if the court had the power, it would not in my opinion make such an order, unless and until the appeal had been dealt with and the question had been considered at the trial level.

It seems clear enough to me that if the appeal is allowed, the matter will be remitted to the Lower Court for preparation for a trial. If the appeal is dismissed then there is no question of the making of this order. Accordingly, that application is dismissed.

He also has before the Court an application in a matter between himself and Mr Harrison. My understanding, which may not be perfect, is that there have been no substantial proceedings brought against Mr Harrison. Rather, Mr McIntyre took out a notice of motion against Mr Harrison who was not a party to the proceedings No 40031/95 which were between Mr McIntyre and Sir Ronald Brierley. He nonetheless took out proceedings by way of notice of motion against him seeking an injunction restraining Mr Harrison from completing the purchase of a farm known as Eudundah at Narromine from a Mr Kinsey or Mr Kinsey's partnership or company. His notice of motion was heard by Hunter J whose judgment I have not had the privilege of seeing, but Mr McIntyre says that Hunter J dismissed the application on the basis that Mr McIntyre had no equity in the property.