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. There is a risk that the present proceedings might be academic, except perhaps as to costs, because it may turn up that no money is owing by the principal debtor. Alternatively, if the principal debtor is found liable, it may pay the debt. One just does not know at this stage of the proceedings. When these matters were put to counsel they were given an opportunity over the luncheon adjournment to consider them. Senior counsel for the appellant indicated that his client sought to have the appeal adjourned. Senior counsel for the respondent indicated that he could not agree to that course at least unless an appropriate order for costs were made in his client's favour. 2 UNREPORTED JUDGMENTS The Court is of the view that the proper course is to stand over the hearing of the appeal on the basis that it not be treated as part-heard, so that it come on for hearing hopefully at a time when the proceedings against the first defendant have proceeded to judgment. There is, of course, the possibility that those proceedings may result in an appeal by one party or the other, in which event obviously there would be utility in the two appeals being heard and determined together. The orders which the Court would make are that the appeal stand into the Registrar's first call-over list on or after 1 May this year and that costs of today be costs in the appeal. The parties are requested to inform Mahoney DCJ that this course has been taken and to inform the Registrar at the call-over that if the judgment has not been handed down in the Court below, then the call-over should be adjourned for a period of two months so that when the matter is fixed the Court hearing the matter will be in a position to dispose of the entirety of the case and, if necessary, two appeals rather than just the one presently before the Court. Those are the orders which I make.