Macnee v Brennan & O'Neill [2001] NSWSC 874

New South Wales Supreme Court

CITATION : Macnee v Brennan & O'Neill [2001] NSWSC 874 revised - 22/11/2001 FILE NUMBER(S) : SC 4125/01; 4568/01 HEARING DATE(S) : 4 October 2001 JUDGMENT DATE : 4 October 2001

Ian Stewart (Plaintiff, both proceedings) PARTIES : Bryce Wood (Defendant, proceedings 4125/01) Douglas William O'Neill (Defendant, proceedings 4568/01) JUDGMENT OF : Master McLaughlin

COUNSEL : P. Huntington (Plaintiff, both proceedings) M.A. Jones (Defendant, both proceedings) SOLICITORS : Slade Manwaring Solicitors (Plaintiff) Barnes & Wanden Attorneys (Defendant, 4125/01) LEGISLATION CITED : District Court Act 1973 CASES CITED : Port of Melbourne Authority v Anschun Pty Limited (1981) 147 CLR 589 Sanderson Motors Pty Limited v Kirby [2000] NSWSC 924 (27 September 2000) DECISION : See paragraph 29.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4125 of 2001 4568 of 2001

Master McLaughlin

Thursday, 4 October 2001 Ian Stewart Macnee v Bryce Wood Ian Stewart Macnee v Douglas William O'Neill

Judgment 1 Master: There are presently before the Court two summonses. The plaintiff is the same in each summons and each summons seeks substantive relief in similar terms. By summons 4125/01 the plaintiff, Ian Stewart MacNee, seeks substantively an order pursuant to section 145 of the District Court Act 1973, that proceedings No. 9153/00 in the District Court at Sydney be transferred to the Supreme Court. 2 The plaintiff in the Supreme Court proceedings is the defendant in the District Court proceedings. The plaintiff in the District Court proceedings is Bryce Wood, who is the defendant in the present proceedings in the Supreme Court. 3 By summons 4568/01 the plaintiff, Ian Stewart MacNee, seeks an order pursuant to section 145 of the District Court Act 1973, that proceedings No. 7950/00 in the District Court of New South Wales be transferred to the Supreme Court. 4 The defendant in the Supreme Court proceedings is Douglas William O'Neill. He is the plaintiff in the District Court proceedings. Mr MacNee is the defendant in the District Court proceedings. 5 The District Court proceedings brought against Mr MacNee by Mr Wood were instituted by statement of liquidated claim filed on 15 November 2000. In those proceedings Mr Wood sues upon a number of dishonoured cheques and claims a sum of $197 000, together with interest thereon, alternatively either pursuant to Regulation 4 of the Cheques Regulations 1987 or alternatively pursuant to s83A of the District Court Act. 6 The District Court proceedings brought by Mr O'Neill against Mr MacNee, were instituted by statement of liquidated claim filed in the District Court on 11 November 2000. By that statement of liquidated claim, Mr O'Neill sues upon a dishonoured cheque. He claims a sum of $5 000, together with interest thereon, alternatively either pursuant to Regulation 4 of the Cheques Regulations 1987 or pursuant to section 83A of the District Court Act. 7 Subsequently Mr O'Neill filed in the District Court on 15 August 2001, an amended statement of claim naming two additional defendants. In respect to Mr MacNee, however, the relief sought was amended to include a claim for damages and, in the alternative, claims for the sums of $500 000 and $140 000. 8 I have been informed that an application by Mr MacNee to strike out that amended statement of claim is listed to be heard in the District Court tomorrow, 5 October 2001. I have also been informed that the hearing of the District Court proceedings brought by Mr Wood against Mr MacNee has been especially fixed to commence on 1 November 2001, with the Court reserving two days for the hearing. 9 Each of the present applications for transfer from the District Court to the Supreme Court is brought pursuant to the provisions of section 145 of the District Court Act. 10 Subsection (1) of that section is in the following terms: "Proceedings may, upon application of a party, be removed into the Supreme Court by order of the Supreme Court upon such terms as to payment of costs giving security for the amount claimed, or costs or otherwise as the Supreme Court thinks fit." 11 Such an application for removal of proceedings from the District Court to the Supreme Court is also contemplated by the provisions of Part 74 of the Supreme Court Rules. 12 I have been taken to various authorities concerning the manner in which the discretion vested in the Court by subsection (1) of section 145 of the District Court Act should be exercised. 13 In particular, I have been taken to the decision of Bryson J in Sanderson Motors Pty Limited v Kirby 2000 NSWSC 924 (27 September 2000). 14 I have also had the benefit of receiving oral submissions from respective Counsel and a written outline of submissions by Counsel for the defendant in each proceedings. Those written outlines will be retained in the Court files. 15 The discretion vested in the Court concerning the transfer of proceedings from the District Court to the Supreme Court is an unfettered discretion. 16 In exercising that discretion, the Court should look to the factual circumstances which make it desirable that the matter should be transferred for hearing to the Supreme Court. 17 The factor upon which the plaintiff relies in each case is that the plaintiff in each set of proceedings, is desirous of obtaining relief by way of an accounting and that such relief is not available in the District Court. It is, of course, available in the Supreme Court and is relief of a nature which is regularly granted in the Equity Division of this Court. 18 Such relief by way of an accounting, was first foreshadowed by the legal representatives of Mr MacNee by way of letter dated 21 March 2001. It is unnecessary for me to set forth in detail the procedural history of each matter in the District Court. 19 However, Mr MacNee has not in fact, until the present application for transfer to the Supreme Court, sought in any formal sense that relief, whilst recognising, of course, that the relief cannot be granted in the District Court. 20 In resisting the present applications, Mr Wood and Mr O'Neill, who have the same legal representation, submitted that their claims are essentially claims brought upon dishonoured cheques. Whilst recognising that the amended statement of claim, which was filed by Mr O'Neill on 15 August 2001, seeks damages, as well as the amounts of the dishonoured cheques, it is the submission of those plaintiffs in the District Court that any entitlement which Mr MacNee might have to an accounting cannot in any way impact upon the relief of the plaintiffs in the District Court in respect to their claims upon the dishonoured cheques. 21 Indeed, during the course of today's hearing, Counsel for Mr Wood and Mr O'Neill made what he stated to be an open undertaking to the Court by his clients, that they would not raise by way of a defence any estoppel on the principles referred to in the decision of the High Court of Australia in Port of Melbourne Authority v Anschun Pty Limited (1981) 147 CLR 589, in consequence of the District Court proceedings in their claims brought against Mr MacNee, in the event that Mr MacNee might otherwise be entitled to relief by way of an accounting against either or both of Mr Wood and Mr O'Neill. 22 In exercising the discretion of the Court, it seems to me also relevant that, at least in the case of Mr Wood, the District Court proceedings have been allocated a hearing date, which is only four weeks' hence, and that there is fixed for hearing for tomorrow an application in those proceedings to strike out the amended statement of claim. 23 Although the factual matrix that gives rise to the assertion by Mr MacNee of his entitlement to an accounting by each of Mr Wood and Mr O'Neill, doubtless is common to the background in which the various cheques were issued (which cheques were subsequently dishonoured), nevertheless the cause of action in respect to those dishonoured cheques is totally distinct from any entitlement which Mr MacNee might have to an accounting. 24 Whilst it is possible that, if at a considerable earlier stage in the District Court proceedings Mr MacNee had raised this question of an accounting, he might have been successful in an application to have those proceedings transferred to the Supreme Court, it seems to me that at the stage where the District Court proceedings have now reached, it is most undesirable that those proceedings should be transferred from the District Court to the Supreme Court. 25 In any event, as I have already observed, the cause of action in the District Court upon the dishonoured cheques is a matter totally distinct from any entitlement which Mr MacNee might have to an accounting. There is nothing to prevent Mr MacNee from instituting proceedings in the Supreme Court in respect to such a claim for an accounting against either or both of Mr Wood or Mr O'Neill. Any such entitlement which Mr MacNee might ultimately establish to an accounting will not be defeated in consequence of any estoppel on the Anschun principle, since Counsel for Mr Wood and Mr O'Neill has given what he has described as an open undertaking to the Court in the terms which I have already outlined. 26 For the foregoing reasons, I do not propose to exercise the discretion of the Court to order that the two sets of proceedings in the District Court be transferred to the Supreme Court. Accordingly, in each case, I propose to order that the summons be dismissed. 27 Counsel for Mr Wood and Mr O'Neill has sought an order that Mr MacNee pay the costs of today's hearing. Such an order has been opposed by Counsel for Mr MacNee. The basis of that opposition was the statement that was made by way of the open undertaking to the Court by Counsel for Mr Wood and Mr O'Neill. 28 It seems to me that that open undertaking was given for an abundance of caution. Even without it, Mr MacNee would not have succeeded in his present applications. Those applications being unsuccessful, I propose to order in each case that Mr MacNee, the plaintiff, pay the costs of the defendants. 29 In each matter I make the following orders: