Stapley v Towing Master Pty Ltd [2007] NSWSC 720

New South Wales Supreme Court

CITATION : Stapley v Towing Master Pty Ltd [2007] NSWSC 720

HEARING DATE(S) : 28 June 2007

JUDGMENT DATE : 29 June 2007

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Application to transfer proceedings to Local Court refused.

CATCHWORDS : PROCEDURE [80] – Supreme Court procedure – Jurisdiction and generally – Other matters – Application to transfer proceedings to Local Court – Civil Procedure Act 2005 s 146 – Proceedings must be shown to be within jurisdiction of Local Court.

LEGISLATION CITED : Civil Procedure Act 2005 ss 93, 146(1)(a) Local Courts Act 1982 s 65

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 CASES CITED : Shafto v Bolckow & Co (1887) 34 ChD 725 Thornhill v Weeks [1913] 1 Ch 438

PARTIES : Sandra Stapley (P) Towing Master Pty Ltd t/as Dynamic Towing (D)

FILE NUMBER(S) : SC 1697/07

COUNSEL : J B Whittle SC (P) M K Condon (D)

SOLICITORS : Courtney & Co (P) Sage Solicitors (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 29 JUNE 2007

1697/07 SANDRA STAPLEY v TOWING MASTER PTY LTD t/as DYNAMIC TOWING JUDGMENT 1 HIS HONOUR: This is an application which I heard yesterday for this matter to be transferred to the Local Court. I need to set out the course that the proceedings have followed to date to provide the framework in which that application falls to be considered. 2 The action is brought in the name of the plaintiff under a right of subrogation by AAMI, the large motor vehicle insurer. The defendant is a company which is in the business of towing motor cars. The central issue is as to whether a person who tows a motor car from the scene of an accident is entitled to a lien for the towing costs over the vehicle whilst it is in that person's possession. Apparently that question has not been specifically decided, and, as will appear, the plaintiff at least says that one of the reasons that the proceedings should be retained in this Court is so that there may be an authoritative decision of the Supreme Court as to whether or not such a lien exists, there being both a commercial interest extending beyond the present case and also a public interest in the decision of this question. 3 The proceedings in question were commenced by a summons filed on 5 March this year. The two substantive prayers in that summons were for: "1 A declaration that the defendant is not entitled to a lien over the vehicle identified in Schedule A to this summons. 2 An order pursuant to Section 93 of the Uniform Civil Procedure Act 2005 [sic] requiring the Defendant to make available for collection by the Plaintiff at a date, time and at a place and in such manner as the Court directs, the vehicle identified in Schedule A to this summons."