ESANDA FINANCE CORPORATION LIMITED v CARNIE [1995] NSWCA 142

ESANDA FINANCE CORPORATION LIMITED v CARNIE

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, KIRBY P and MEAGHER JA 13 April 1995

[1995] NSWCA 142

Gleeson CJ. This matter has come before us today for the purpose of considering whether the court should order otherwise pursuant to the provisions of Pt 8 r 13 of the Supreme Court Rules in relation to a desire on the part of the plaintiffs to have the proceedings go forward as representative proceedings.

When I say 'representative proceedings' that raises the question: representative of whom? The answer to that question appears to be that the parties do not know. It was said in an affidavit of Andrew George Wills of 7 April 1995 (and the evidence is uncontradicted) that some of the customers of Esanda, who are the subject of the representative order presently sought in the further amended statement of claim, are persons who commenced separate proceedings against Esanda in another jurisdiction, and who have settled those proceedings.

Senior counsel for the plaintiffs has indicated that he does not have sufficient instructions at the moment to enable him to know exactly whathas occurred in that respect but obviously there is a large question as to whether, whatever might otherwise be decided in relation to this matter, the plaintiffs should be permitted to continue with the action as representatives of those persons.

There are a number of questions that will need to be addressed in making a discretionary decision of the kind required at this stage by the provisions of Pt 8 r 13. Some of those have been mentioned in some of the judgments in the High Court. Others have been raised by the affidavit of Mr Wills to which I have just referred. It is said in that affidavit that Esanda would desire to propound cross-claims against the plaintiffs, and against a number of other people who fall into the class of persons the plaintiffs seek to represent in these proceedings. A reading of Mr Wills" affidavit suggests that there are still a large number of uncertainties about the nature and extent of those cross-claims, and there is also a question of the way in which r 13 provides for such a procedure.