Valerie CLARKE (nee Tootell) v CREDIT CORP AUSTRALIA PTY LIMITED [1996] NSWCA 104

Valerie CLARKE (nee Tootell) vy CREDIT CORP AUSTRALIA PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P and CLARKE JA 2 December 1996

[1996] NSWCA 104

Mahoney P. This is an application for leave to appeal against the order referred to in paragraph one of the summons with the consequential order in paragraph two. In order to prevent confusion as to what has occurred it is proper for the Court to indicate very briefly what has happened.

The judge below was concerned with three matters, the three notices of motion referred to in the first paragraph of his judgment. He made an order in the exercise of a discretion which he found he had under s 84A of the District Court Act. He also made an order substituting one plaintiff for another as judgment creditor. And he dismissed the third matter before him, a motion by the defendant.

The application for leave to appeal relates and relates only to what was done on the first matter, the order under s 84A of the District Court Act. The substitution of other parties for the original judgment creditor, the City Corp Company, has not been the subject of appeal or leave to appeal. The orders there made have been made and,as far as this Court is concerned, they stand. The only matter that has to be dealt with is the matter raised by the first paragraph in the summons.

I say that because the material before the Court is that contained only in the statement under Part | rule 3(7). That is an agreeably detailed statement. It has set forth very clearly the matters that were referred to but the issue that is before the Court is, and is only, the matter in paragraph one of the summons to which IT have referred. In my opinion, the proper order of the Court is that, as a matter of discretion, the Court should refuse leave to appeal against that order.