Paccar Financial Pty Ltd v Menzies; Menzies v Paccar Financial Pty Ltd (No 3) [2013] NSWSC 551

Supreme Court New South Wales

Medium Neutral Citation: Paccar Financial Pty Ltd v Menzies; Menzies v Paccar Financial Pty Ltd (No 3) [2013] NSWSC 551 Hearing dates: 13/05/2013 Decision date: 14 May 2013 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The Menzies' application for adjournment of the hearing is refused. (2) The hearing will proceed on the evidence before the Court. Catchwords: PROCESS AND PROCEDURE - adjournment application - self-represented litigant - third application for vacation of hearing date - prejudice to defendant - application refused Legislation Cited: Civil Procedure Act 2005 Contracts Review Act 1984 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Hamod v State of New South Wales [2011] NSWCA 375 Category: Procedural and other rulings Parties: 2010/377702 Paccar Financial Pty Ltd (Plaintiff) Ian David Menzies (First Defendant) Colleen Anne Menzies (Second Defendant)

2011/176144 Ian David Menzies (First Plaintiff) Colleen Anne Menzies (Second Plaintiff) Paccar Financial Pty Ltd (Defendant) Representation: Counsel: D Rayment Solicitors: Mills Oakley Lawyers (Paccar Financial Pty Ltd) I Menzies (Ian & Colleen Menzies) File Number(s): 2010/377702; 2011/176144

Judgment 1HER HONOUR: There are two sets of proceedings before the Court. The matters were listed for hearing on 13 May 2013. Mr Menzies has applied for an adjournment of the hearing date. He represents his wife in relation to this application (see Ex 1). The application is opposed by the defendant, Paccar Financial Pty Limited. Mr Rayment of counsel represented Paccar. The hearing of this application took the entire day. At the conclusion, I have refused the application for adjournment and have written some short reasons. 2In the adjournment application, Mr Menzies relied on three volumes of material, Exhibits 2 (one volume) and Exhibit 3 (two volumes). Paccar relied on a volume of documents contained in Exhibit A. 3There are two sets of proceedings listed for hearing. 4In proceedings numbered 2010/377702, the plaintiff is Paccar Financial Pty Ltd ("Paccar"). The defendants are Ian David Menzies and Colleen Anne Menzies; they are husband and wife ("the Menzies"). 5In proceedings numbered 2011/176144, the plaintiffs are the Menzies and the defendant is Paccar. On 27 May 2011, the Menzies commenced proceedings claiming damages against Paccar. 6It is alleged that by the Menzies becoming substituted as creditor and obtaining a sequestration order when Paccar knew that the debt was disputed in the Supreme Court proceedings, the prosecution of the Menzies in the Federal Magistrates Court was an abuse of process. The Menzies have also claimed that Paccar engaged in misleading and deceptive conduct and make a claim under the Contracts Review Act 1984. 7By amended statement of claim ("ASC") filed 29 July 2011, Paccar seeks that the Menzies deliver the following goods to them: (a) 1 x 2004 Vawdrey D Double Tautliner Trailer Chassis No XXXXX Registration XXXXX and 1 x 2004 Vawdrey B Double Tautliner Trailer Chassis No XXXXX Registration XXXXX (as set out in Loan Contract 7470-20393); (b) 1 x 2003 Kenworth K104 Prime Mover Chassis No XCXXXX Engine No XXXXX Registration NV56EK (as set out in Loan Contract 7470-20394); (c) 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX (as set out in Loan Contract 7470-20396); and (d) 1 x 2003 Kenworth K104 Prime Mover Chassis XXXXX Engine XXXXX Registration XXXXX (as set out in Loan Contract 7470-20396). ("the trucks") 8Paccar seeks a declaration that they are entitled to possession of the equipment, verdict and judgment for such amounts as are found to be owing by the Menzies to Paccar under the guarantee and indemnity including damages, the termination amount of $373,541.09 and/or, in the alternative, such amount as the Court finds owing and interest. Paccar also seek costs on a full indemnity basis pursuant to clause 17.1, 17.2, and 17.4 of the loan contracts and damages for wrongful detention of the equipment from 26 March 2009. In the alternative damages for an amount equivalent to its value and interest on the damages from the date of disposal. They also seek an order that the equipment vest in them pursuant to s 568F of the Corporations Act 2011.