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. There is very little in the way of evidence concerning the property before the Court. However, I have been told, and I accept, that Eudundah was the family property which was owned by Mr McIntyre's father. Mr McIntyre worked on it for 29 years and poured his heart and soul into it and performed a great deal of work for very little monetary return. To him Eudundah is his life. In the late 80's, the combination of difficult conditions and extremely high interest rates put a number of farmers and graziers under pressure. To some the pressure was so great 2 UNREPORTED JUDGMENTS that they did not survive and they had to sell their properties. It seems that one such person was Mr McIntyre's father. He sold in 1988 to Mr Kinsey and so far as I know, and I specifically asked the question, there was no mortgage back registered on the title to Mr McIntyre's father. There is nothing, again this is my imperfect understanding, which would stop Mr Kinsey selling the farm unless the Court made an order restraining him from doing so. He has now entered into a contract to sell to Dr Harrison or his interests, and that contract is due for completion in a very short time. Mr McIntyre is desperate to stop completion of that contract taking place because he sees that event as totally and utterly destructive of his life in the future. Ihave a deal of sympathy for Mr McIntyre who not only has suffered from the banking problems to which I earlier referred (vicariously through his father) but has also suffered through the loss of a considerable investment inthe Adsteam empire but as I sought to explain to him, my sympathy does not allow me to throw the rule of law out the window. I am bound to act in accordance with well established principles. One of those principles is that the court does not make orders prejudicing parties who are not before it. While Mr Harrison is a respondent and has I am told been served, Mr Kinsey is not a respondent. He is not a party to the proceedings in any way and this Court would be denying him natural justice if it were to accede to the application. As a matter of substance and form the orders which are sought could not be made but in addition it seems clear to me also that Hunter J was right to say that Mr McIntyre had no proprietary interest in the property which would found or base an injunction restraining the sale of the property. His interest, if indeed he has one, seems to me to involve himself and his father. I do not make a definitive ruling to that effect but that is the impression from what he has told me and in all the circumstances there is no grounds for concluding that Hunter J was wrong and no basis for making the injunction that is sought. The application must be refused. I make no order for costs in either proceedings. Orders accordingly.