RING TREAD SYSTEMS (AUSTRALASIA) PTY LTD v TUBB [1998] NSWCA 187

RING TREAD SYSTEMS (AUSTRALASIA) PTY LTD v TUBB SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and POWELL JJA 2 March 1998

[1998] NSWCA 187

Mason P On 6 December 1996 Mahoney DCJ delivered judgment ex tempore at the end of a trial. The plaintiff in the proceedings sued a company Speedie Tyres Pty Ltd for moneys due for goods sold and delivered; and an officer of that company, Mr Tubb, for liability on the guarantee. Mr Tubb represented himself at the trial and sought to represent the fellow defendant. However, his Honour refused him leave to do so.

In the judgment the learned trial judge indicated that he found a verdict for the second defendant, Mr Tubb, against the plaintiff and his Honour purported to dispose of the proceedings so far as concerned the second defendant.

Although the trial had continued and ostensibly finished, his Honour did not dispose of the trial as against the first defendant. He said he was unable to determine how much, if anything, the plaintiff was entitled to recover from the first defendant for various reasons. The proceedings against the first defendant were stood over. We were informed that they were heard some time in 1997 and the judgment still stands reserved.

This appeal is brought by the plaintiff against the dismissal of the proceedings against the alleged guarantor. Submissions have been filed, the respondent's submissions being filed today. One of the issues is an application by the appellant for leave to shorten the time that would permit it to rely upon fresh evidence in support of one of its grounds of appeal. That leave is opposed by the respondent to the appeal.

When the case started, members of the Court indicated to counsel that they saw some difficulty with the matter proceeding. The appellant was seeking a re-trial. If that order were made, there was the risk that the matter would be sent back to Mahoney DCJ for a re-trial which may be unnecessary if it turned out that no money was owing by the principal debtor. Alternatively, there was the risk that his Honour might deliver judgment concurrently with any order that this Court may make and that the order sending the matter back to his Honour might somehow fail properly to marry up with the balance of the proceedings that had been disposed of in the interim by Mahoney DCJ.