Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Menzies v Paccar Financial Pty Ltd (No 2) [2014] NSWCA 2 Hearing dates: 21/01/2014 Decision date: 21 January 2014 Before: Leeming JA Decision: 1. Dispense, to the extent necessary to do so (if any), with any further compliance with UCPR 51.24(1)(b) and (2). 2. Direct Mr and Mrs Menzies to file and serve any proposed amended notice of appeal by 5pm on Friday, 24 January 2014. 3. Direct Paccar to indicate as soon as possible, but in any event no later than Friday, 31 January 2014, whether it opposes any application by Mr and Mrs Menzies for leave to amend the notice of appeal. 4. Direct Mr and Mrs Menzies to file and serve submissions and any supplementary material on or before 4pm on Friday, 31 January 2014. 5. The directions made by me on 27 November 2013, varied by me by order 3 on 16 December 2013, as to the filing and service of Mr and Mrs Menzies' submissions, are varied accordingly. 6. Otherwise dismiss Mr and Mrs Menzies' notice of motion of 12 December 2013 as amended today and Paccar's notice of motion of 9 December 2013. 7. Liberty to apply on 48 hours' notice, by email to my Associate in the first instance. 8. Mr and Mrs Menzies to pay Paccar's costs of the motions of 12 and 9 December 2013. 9. Note that Paccar will file and serve copies of the red and black books (the black book including the transcripts of 13 and 14 May and 13 June 2013) on or before 29 January 2014. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - interlocutory applications - application to vacate hearing date - alleged non-compliance by Registry with UCPR, r 51.24 - no material prejudice suffered - threatened application to amend - amendments not yet formulated - application to vacate opposed by respondent - application refused Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58 Uniform Civil Procedure Rules 2005 (NSW), r 51.24 Cases Cited: Bovaird v Frost [2013] NSWCA 91 Prynew Pty Ltd v Nemeth [2011] NSWCA 5 Category: Interlocutory applications Parties: Ian David Menzies (first appellant) Colleen Anne Menzies (second appellant) Paccar Financial Pty Ltd (respondent) Representation: Counsel: First appellant in person and on behalf of the second appellant P Newton (respondent) Solicitors: Mills Oakley Lawyers (respondent) File Number(s): 2013/153139 Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 772 Date of Decision: 2013-06-13 00:00:00 Before: Harrison AsJ File Number(s): 2010/377702; 2011/176144 Judgment 1There are two motions presently before me. The first in substance is an amendment of a notice of motion filed by the appellants, Mr and Mrs Menzies, seeking the vacation of the appeal which is set down for hearing on 10, and if necessary, 11 February this year, and other orders identified in the document which became exhibit A as follows: "1. Vacate the Hearing of the Appeal. 2. Order the Court to comply with UCPR 2005 Rule 51.24 (1) (b)(i) (ii) (iii) (iv) and (2). 3. Stay all the Harrison As.J. Orders until 4 weeks after the Appeal is heard (so as to allow either party time to Appeal to the High Court). 4. Arrange for the CD of the Hearing before Registrar Bradford to be transcribed. 5. Ask the Registry to comply with Order 5. - 27/11/2013 -(supply copy of standard Appeal Books to Menzies). 6. Take into account circumstances beyond the control of Menzies as portrayed in their Notice of Motion Filed 12 December 2013." 2The second motion is that of the respondent, Paccar Financial Pty Ltd, of 9 December 2013 seeking either that the appeal be dismissed summarily for want of prosecution or alternatively that the existing stay be dissolved. 3It is necessary to say something about the background to the appeal. Mr and Mrs Menzies appeal from three judgments of Harrison AsJ. The first dated 14 May 2013 was her Honour's decision to refuse the Menzies' application for an adjournment of the hearing: [2013] NSWSC 551. The second was her Honour's refusal to reopen the hearing, which had taken place on 14 May in the absence of Mr and Mrs Menzies, on 13 June 2013: [2013] NSWSC 743. The third is the final judgment, also delivered on 13 June 2013, whereby her Honour found in favour of Paccar, ordered that Paccar was entitled to possession of certain identified prime movers and trailers, ordered Mr and Mrs Menzies to deliver that property to Paccar within 14 days, ordered that Mr and Mrs Menzies were to pay Paccar the sum of $572,442.96, and dismissed Mr and Mrs Menzies' cross-claim: [2013] NSWSC 772. Her Honour's refusal of Mr and Mrs Menzies' application for an adjournment or vacation of a hearing had been preceded, earlier in 2013, by successful applications by them to vacate the final hearing, which had been set down on two separate occasions prior to May 2013. 4Subsequently the matter came before Rothman J. Rothman J granted a limited stay of what I will call the money judgment, and made a direction that Mr and Mrs Menzies receive, if it be available, pro bono legal assistance. 5The appeal, which was promptly filed by Mr and Mrs Menzies, then came before me before the expiry of the limited stay ordered by Rothman J, which I extended, and then, after a hearing on 26 August 2013, I made orders extending the existing stays of both the money judgment and possession orders until 5pm on Monday 23 September 2013: [2013] NSWCA 283. In relation to the money judgment, I ordered that it be stayed until 28 days after the determination of the appeal, on terms that Mr and Mrs Menzies were to prosecute their appeal with reasonable diligence. In relation to the mandatory injunction issued by Harrison AsJ to deliver possession of the prime movers and trailers to Paccar, I ordered that upon the undertaking by Paccar to the Court that, upon delivery to it of the equipment, it will store and keep the equipment exercising care as would be required of a bailee of similar goods and that it will deliver the goods in accordance with the order of the Court, the orders made by Harrison AsJ were effective and could be enforced on and after 24 September 2013. Because neither Paccar nor Mr and Mrs Menzies had been fully heard on 26 August 2013, I made it clear in my reasons that the orders extending the stay of the money judgment, but removing the stay on the order for possession of the prime movers and trailers, were provisional and permitted the parties to apply to me, promptly, if they wished further to be heard on those matters: see at [53] and [55]. Although there was some communication between Mr and Mrs Menzies and the Registrar of this Court by, as I understand it, email, no application was made by either party to vary the orders that had been made provisionally. That regime has remained in place subsequently. On 24 September 2013 Paccar filed the undertaking contemplated by those orders. 6The procedural history subsequently is one of consistent non-compliance with orders and directions of the Court. On 4 September 2013, when the appeal was listed for hearing on 10 February this year, the Registrar directed the filing and service of appeal books and submissions by 23 October 2013. That direction was not complied with. On 30 October 2013, the Registrar directed that the appellants' submissions and any amended notice of appeal be filed and served by 13 November 2013. That did not occur. On 20 November 2013 the Registrar directed that the red appeal book be filed and served by 27 November 2013 at 9am, together with, relevantly, the appellants' submissions. At the same time he listed the matter before me at 9.30am on 27 November 2013. By 27 November 2013, once again, neither the red book nor the submissions had been filed. On 27 November, I made directions relating to the service of the motions which, as it turns out, in substance have been those debated before me for almost three hours this morning. However, in a hearing before me on 16 December 2013, I made directions, in substance by consent, as follows: (1)Note that the respondent has provided a copy of the court book of 1,025 pages before Harrison AsJ to Mr and Mrs Menzies. (2)Note that Mr and Mrs Menzies will attend Mills Oakley at 3pm this afternoon to obtain a copy of the pleadings and a draft index for the red book. (3)Vary the directions I made on 27 November 2013 so that Mr and Mrs Menzies are to file and serve their submissions on or before 7 January 2014 and the respondent is to file and serve its submissions on or before 4 February 2014. (4)Direct Paccar to file and serve copies of the orange book excluding reply submissions as soon as possible after 4 February 2014. (5)Direct Mr and Mrs Menzies to file and serve any submissions in reply by 4pm Friday 7 February 2014. (6)Stand over the notices of motion dated 9 and 12 December 2013 for directions on 10 February 2014. (7)Give the parties liberty to apply on 48 hours' notice. (8)Direct that the Court Book referred to in direction 1 stand as the blue book in the appeal, noting Mr and Mrs Menzies may wish to supplement it. 7Shortly after 16 December 2013 there was a series of emails exchanged between Mr and Mrs Menzies and the Registrar. The most salient complaint advanced by Mr and Mrs Menzies was that there had been non-compliance on the part of the Court with the obligations in Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.24. The Registrar, promptly, by email on Thursday 19 December 2013, responded advising that Mr and Mrs Menzies were welcome to inspect the lower court file within the Registry, at any time, indicating that the lower court file would not be released to them (no differently from any other self-represented person), although a copy of any document within the court file would be made available free of charge, if Mr or Mrs Menzies considered it necessary for the preparation of the appeal papers. The Registrar did not agree that the Registry had not complied with UCPR, r 51.24. There were further emails from Mr Menzies to the Registrar in response, culminating on 24 December 2013 (I interpolate that the end of law term was 20 December 2013). 8I granted leave for liberty to apply on 48 hours' notice on 16 December 2013. That liberty was exercised by Mr and Mrs Menzies. As it turns out, and if I may say so probably most efficiently, rather than the motions being agitated before a Judge who did not have familiarity with the background, they have come to be determined before me today, during the vacation. 9The principal application is that of Mr and Mrs Menzies to vacate the hearing of their appeal, which is set down on 10 February 2014. The ordinary principle in such cases is, as Basten JA has said, that the Court does not readily accede to such applications unless the proceedings have been settled or abandoned: Bovaird v Frost [2013] NSWCA 91 at [1]. That application is opposed by the judgment creditor Paccar and Paccar indeed proposes various steps so that the appeal can be fairly heard and determined in the second week of February. Paccar proposes, as the price of holding onto the appeal date, that it will prepare the red book and the black book, and that it will do so by 29 January 2014. The blue book, it will have been seen, is already the subject of a direction made by me on 16 December 2013, although of course, it is open to Mr and Mrs Menzies to seek to supplement it. 10The reason that the Court does not readily accede to applications to vacate, especially when those applications are opposed by the respondent, is in part a consequence of the dictates of ss 56-58 of the Civil Procedure Act 2005 (NSW), and partly a consideration of the underlying fairness to the judgment creditor who prima facie is entitled to the fruits of its victory and to have the uncertainty created by the exercise of the right of appeal resolved sooner rather than later. 11Very much at the forefront of Mr and Mrs Menzies' application to vacate is their claim that there has been non-compliance with r 51.24. The relevant provisions of that rule are as follows: "(1) On the filing of a notice of appeal, the Registrar: ... (b) must obtain from the proper officer of the court below: (i) the exhibits, and (ii) the list of exhibits and certificate under rule 51.43, and (iii) all other relevant documents before the court below, together with a list, certified by the proper officer of the court below, and (iv) the reasons for judgment (if any) or the summing up (if any) in the court below certified by or on behalf of the court below. (2) Unless the Appeal Book is prepared by the Registrar, the Registrar must allow the party required to prepare the Appeal Book to have custody of the documents necessary to prepare it." 12Mr and Mrs Menzies submit that first, they are entitled to a certified copy of the pleadings necessary to complete the red book, and are not required to rely upon the copies which have been provided to them by Paccar. Secondly, they say that they are not required to rely upon the material which was in evidence at first instance before the primary judge (Mr and Mrs Menzies not being present for the hearing), but should have the benefit of a certified set of documents from the Court explaining what precisely was in evidence before the court. Thirdly, they say that to the extent that the primary judge referred to documents not in evidence before her, they are entitled, again, to a certification from the Court as to precisely what her Honour relied upon. This last category was illustrated by three instances. The first is that her Honour made mention of matters contained in an "incomplete unsworn draft affidavit" of Mr Menzies: see [35] and following. Mr Newton, who appeared for Paccar before me (although not at first instance) said that in the course of Mr and Mrs Menzies' application for an adjournment that affidavit had been handed to her Honour. Mr Menzies did not dispute this. Mr Menzies says that the reference to his incomplete unsworn draft affidavit is not sufficiently specific for him to know what affidavit her Honour was referring to. In submissions to me he asked, rhetorically, "What draft affidavit did she consider? The one that 40 pages in it, the one that had 140 pages, the one that had 160 pages?" The second and third were references to a judgment in the Federal Magistrates Court in BP Australia Pty Ltd v Menzies [2010] FMCA 375 before Hartnett FM, and on appeal before Bromberg J: [2011] FCA 460: see [125] and [128] of [2013] NSWSC 772. Mr Menzies again, rhetorically, asked me, "What judgment did she read? And are they the proper judgment?" 13In my view, the primary submission made by Mr and Mrs Menzies about non-compliance with r 51.24 acting to their prejudice should be rejected for these reasons. The first appeal book required to be filed is the red book. There is no dispute that Paccar has supplied a draft index to the red book to Mr and Mrs Menzies, which indicates the six relevant pleadings before her Honour (the substance of which are referred to in [4]-[7] of her Honour's reasons in the substantive judgment). 14The red book also has to contain the judgments, orders and notice of appeal, but no complaint in relation to those based on the alleged non-compliance with r 51.24 is made by Mr and Mrs Menzies. Mr and Mrs Menzies have been given copies of those six pleadings by Paccar. They say that they are entitled to rely upon a copy of those pleadings from the Court, rather than Paccar. 15The first difficulty with that submission is that r 51.24 is not directed to pleadings. It is directed to exhibits and all other relevant documents before the Court below, rather than pleadings. The second reason why in my view no prejudice arises as alleged by Mr and Mrs Menzies is that, as the Registrar indicated on 19 December 2013, it has been at all times open, to the extent that Mr and Mrs Menzies doubt the accuracy or authenticity of the pleadings provided by Paccar, to compare those pleadings with those in the original court file. Indeed, under the regime proposed today by Paccar where it will prepare a red book by 29 January, Mr and Mrs Menzies will still have ample time to check that the pleadings correspond with those on the file, if they wish to do so. I add, that although Mr Menzies' concern about the accuracy of documents provided by Paccar has been very much at the forefront of his submissions today, there is no evidence before me to indicate what I would regard as the unlikely possibility that there is in fact any divergence between the material on the court file and that provided to Mr and Mrs Menzies by Paccar. 16In relation to the black book (the transcripts of the hearings before the primary judge) save for one thing (the transcription of a hearing before Registrar Bradford to which I will return below) no issue has been raised by Mr and Mrs Menzies. In relation to the blue book, the position, in my view, is substantially similar. Mr and Mrs Menzies have had, at least ever since they were provided with a copy of the court book which I have ordered will stand as the blue book in this appeal by Paccar last December, the opportunity to check the accuracy of the documents in it against those remaining on the file (assuming indeed that any exhibits have remained on the court file; there is no evidence one way or the other before me as to whether the exhibits were returned to the parties at the conclusion of the hearing). There has been no suggestion by Mr Menzies that he has attempted, in the weeks that have elapsed subsequently, to assuage the concerns he has in relation to the accuracy of the documents, but, in any event, to the extent that those concerns remain, it remains open to him to do so. 17That does not wholly answer Mr and Mrs Menzies' concerns in relation to the blue book because they, as I have noted above, draw attention to other documents relied upon by her Honour, or, perhaps more accurately, referred to by her Honour in the substantive judgment on 13 June 2013. Nevertheless, there has been no suggestion before me that there is any material inaccuracy in the recitation of matters from Mr Menzies' unsworn and incomplete draft affidavit in her Honour's reasons, and no real evidence of any inability on the part of Mr and Mrs Menzies to examine the file and compare what is found there against the various versions of his unsworn draft affidavit which he has referred to in oral address to me. 18In making those statements, I am, of course, not expressing any view about the appropriateness or inappropriateness of her Honour referring to documents on the file, or which had been provided to her in the course of earlier applications before her; I infer that that may be an aspect of Mr and Mrs Menzies' complaint to be agitated at the hearing of the appeal. My concern now is merely to determine whether, as Mr and Mrs Menzies submit, there has been non-compliance with r 51.24 such as to prejudice the hearing of their appeal. 19Mr and Mrs Menzies point, with some force, to the mandatory language of r 51.24, including obligations to obtain a certified list of "all other relevant documents before the court below". It is easy to see that those rules are more important where (as is the case for most appeals in this Court) the appeal lies from another Court, rather than from a judicial officer in the Supreme Court itself. Nevertheless, the point of those rules primarily is to permit the party required to prepare the appeal book to do so. 20In the circumstances presently before me, where Paccar (following a course, which it may be noted, is regularly followed in federal courts where the applicant or appellant is without legal representation) has assumed the burden of providing the appeal book, I find it difficult to see how, if there is any non-compliance with the rule, there is any material prejudice to Mr and Mrs Menzies. More importantly, I find it very difficult to reconcile the obligations which I, together with Mr and Mrs Menzies and Paccar, are subject to under the ss 56-58 of the Civil Procedure Act, with Mr and Mrs Menzies' primary submission, namely that someone within the Court's registry, or alternatively within the chambers of Harrison AsJ, go through the file and indicate what were the actual exhibits (if they are available) and other relevant documents (if there are any) so that Mr and Mrs Menzies can prepare the appeal books. Mr Menzies, correctly and, if I may say so, presciently, is conscious that there is a power to dispense with any of the rules. To the extent necessary, I would dispense with any further compliance with r 51.24(1)(b) or (2) in light of what Paccar has undertaken in relation to the preparation of the appeal books. 21That does not dispose of the matters raised by Mr and Mrs Menzies in support of their application to vacate the hearing. In the course of submissions, Mr Menzies indicated that he wished to amend the notice of appeal. He identified two matters orally (no written formulation of any proposed amended notice of appeal has been provided to me or to Paccar). The first was a ground that Harrison AsJ had erred in relying upon untested evidence; I infer this is a reference to the reliance by her Honour on the affidavits referred to in [8] of the substantive judgment on 13 June 2013, at which Mr and Mrs Menzies did not appear. 22The second proposed amendment was only articulated by reference to advice, the detail of which Mr Menzies could not on his feet remember, which he had (I infer, some months ago) been given by one of the various lawyers who have from time to time given to him pro bono assistance. Against this, Paccar said that when and if Mr and Mrs Menzies formulated a proposed amendment they should communicate it to Paccar, and promptly Paccar would indicate whether or not they would consent to the amendment. 23Doing the best I can, I have no reason to doubt that if and when a proposed amendment is supplied by Mr and Mrs Menzies, it will not be impossible for Paccar, in a way which is fair to it and the appellants, to respond to it. In relation to the only proposed amendment which has been articulated by Mr Menzies, that has been, although not in the notice of appeal, included within the written and oral submissions which have been made on their behalf for some weeks now, and certainly does not take Paccar by surprise. 24Paccar says that I should have regard to the repeated non-compliances by Mr and Mrs Menzies with the procedural directions which have been made to date in the exercise of my discretion against granting the vacation sought by Mr and Mrs Menzies. In addition, it says that there is evidence before me that there has been something much more serious, namely, non-compliance with the substantive orders made by her Honour to deliver possession of the prime movers and trailers, which are no longer the subject of a stay in this Court and in respect of which Paccar has served the undertaking contemplated in order 3 made on 30 August 2013. Paccar points to Mr and Mrs Menzies' email of 18 September 2013 which includes this sentence: "We reiterate that Trucks will without Fail Stay in Control of a Third Party Locked in Secure Storage and will not be released to anybody until either An Appeal Judgment in our favour is forthcoming or A Final Judgment from the Court of last resort which is the High Court of Australia and the vehicles will be Released pursuant to that final judgment." 25They also point to an email from Mrs Menzies dated 27 September 2013 (after the expiry of the stay granted by me) which includes an attachment seemingly signed by Mr Menzies which states: "I Ian David Menzies Reiterate until there is a Fair and Just Trial of the matter the Trucks will not be submitted to anybody and if the Court and Paccar wish to gaol me the Trucks will rust and rot into oblivion." 26Paccar does not invite me to find that there has been and continues to be a contempt by Mr and Mrs Menzies and points out that it is not prosecuting for a contempt. It says that there has been no statement of charge served, nor is there evidence presently before me to indicate, to the criminal standard, that all the elements of a contempt have been established. Paccar merely says that this is a further example of non-compliance with orders of this Court which I should rely upon in the exercise of my discretion not to accede to Mr and Mrs Menzies' application. 27I do not place significant regard on the seeming non-compliances by Mr and Mrs Menzies of either the procedural or substantive orders of this Court, contrary to Paccar's submission, save in one respect. As I see it, the question before me is whether Mr and Mrs Menzies have satisfied the relatively heavy onus which lies upon them to vacate the hearing of their appeal which long ago (by which I mean many months ago) has been set down for hearing in the second week of February 2014. 28The primary matter on which they have placed reliance, the non-compliance with r 51.24, is, for the reasons indicated above, insufficient in my view to warrant vacation of the appeal. So too, in light of the attitude taken by Paccar, the nature (to the extent it has been articulated) of any proposed amendments by Mr and Mrs Menzies, is likewise insufficient. The ultimate question is whether, notwithstanding the delays that have occurred, there can be a fair hearing of Mr and Mrs Menzies' appeal. By fair, I mean not merely fair to Mr and Mrs Menzies, who have exercised the statutory right to invoke the jurisdiction of this Court, but also fair to Paccar. 29I am concerned, as I indicated today, and also on 16 December 2013, that there has been seeming non-compliance with the substantive orders of this Court. The sooner this appeal is resolved, the better. That is not merely in order that the correctness or otherwise of the decisions of Harrison AsJ may be established by appeal. It is also to reduce the risk that the interlocutory regime in place between the parties does not give rise to further litigation, including prosecution for contempt. 30A feature, which is to be regretted, of the procedural history of this appeal to date, is that it seems overwhelmingly likely that more time has already been spent on the interlocutory regime than will be spent on the ultimate appeal. Especially in those circumstances, it seems to me, the matters in s 57 of the Civil Procedure Act, to which I must have regard, namely the just determination of proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties, have application. 31I acknowledge that I have some concern that the non-compliance with the procedural directions to date may lead to inefficiencies in the hearing of the appeal. As Allsop P said in Prynew Pty Ltd v Nemeth [2011] NSWCA 5 at [7], it is inappropriate for judges in this Court with busy schedules to spend unnecessary time dealing with cases that are "lamentably" prepared. In that case, there had been no dispute that the preparation of the appeal was properly described as having been "lamentable". That was a more extreme case than this. 32I have had the opportunity to read and hear Mr and Mrs Menzies' submissions now on a number of occasions. From what I have seen, and what I understand of the nature of the appeal, I remain of the view that it can, and therefore should, proceed in a way that is fair to all parties, and efficient from the perspective of the Court. It must be said, that, and I mean no criticism at all in so saying, that Mr Menzies is articulate on his feet although occasionally colourful in his language, and able to advance submissions articulating his concerns with some effect. 33As I presently see the matter, much of the substantive complaint is effectively articulated in paragraphs 8(i)-(iv) of his submissions before me today: "As is well known, we were denied our right to present our evidence at the purported hearing. The Associate Judge quoted two Precedent Cases that did not support her decision not to adjourn the matter on the 13 May 2013 (both cases cited had entirely different circumstances) she failed to accept irrefutable evidence as to why our evidence was not finished which encompassed 7 years being before in excess of 20 Judges with some 20 different Lawyers against us in almost every Jurisdiction in Australia ie. Medical Issues; circumstances beyond our control; Impositional Costs threats by Paccar's Lawyers. The Associate Judge failed to reopen the matter on the 13 June 2013 in the face of us having prepared some 3 boxes of evidence and again on her own bat, cited a Precedent Case to support her decision to not reopen. That case, did not support her decision (again, the case cited had entirely different circumstances). The main Judgment was arrived at by the Associate Judge conducting a five day Trial in 1 ½ hours with less than 30 full pages of Transcript taken up, in the absence of the Applicants - I. and C. Menzies. The Associate Judge accepted untested evidence. Quoted a Draft Unsworn Affidavit of the first Applicant Ian Menzies brought Judgment against Colleen Menzies (the Second Applicant) without any evidence Whatsoever save the untested evidence submitted by the Respondent Paccar. The Associate Judge delivered a Judgment which is a further 'Abuse of Process' and contains 'double dipping' Orders which give a money judgment against Menzies for the disputed value of the trucks and doubles up by Ordering that on top of that the trucks are to be given to Paccar." 34At the conclusion of his submissions in reply, Mr Menzies said that there was "nothing I want more than that an appeal court to hear this matter". For the reasons I have given, I am not persuaded that Mr Menzies has discharged the obligation upon him to vacate the hearing which has been set down. 35I turn to the remaining matters before me today. For the reasons given above, I decline to make an order relating to the compliance with UCPR, r 51.24(1)(b) and (2). Although Mr and Mrs Menzies sought an order that the CD containing a recording of the hearing before Registrar Bradford on 7 May 2013 be transcribed, they now accept that it is open to them to prepare a transcription of that hearing themselves (I have been told it lasted about an hour), and counsel for Paccar has acceded to the course proposed by me, namely, that Paccar will indicate if it disagrees with any aspect of that transcription. Whether or not that transcription is relevant to any issue arising on the appeal is not something that I express a view about now. 36With respect, Mr and Mrs Menzies' application for an order that the Registry comply with order 5 made by me on 27 November 2013 is misconceived. In any event, what has been proposed by Paccar today addresses the question of the appeal books sufficiently to resolve that aspect of Mr and Mrs Menzies' application. 37More substantively, I turn to the stay sought by Mr and Mrs Menzies. Paccar has made it clear that in the event that the hearing not be vacated, it does not make any submission that there has been a failure to prosecute Mr and Mrs Menzies' appeal with reasonable diligence. In the absence of any submission, I am not prepared find that the terms of that order have not been satisfied. It follows that, so far as the money judgment (orders 3 and 5 made on 13 June 2013) is concerned, there continues to be a stay in place until 28 days after the determination of the appeal, which is precisely what Mr and Mrs Menzies seek in paragraph 3 of exhibit A. 38In relation to the unstayed orders for delivery of possession of the prime movers and trailers, those orders were not stayed by Rothman J and have not, since 24 September 2013, been stayed by me. There was an attempt in submissions by Mr Menzies to point to further matters predating August 2013, in effect inviting me to revisit my adverse determination to him of that stay. As I indicated to him, I do not propose to take that course. There was no attempt in August or early September 2013 by Mr and Mrs Menzies to be heard further in relation to that stay, nor was any application made to review that decision. I also indicated to Mr Menzies that if there were matters arising after 30 August 2013, on which he wished to place reliance in order to cause me to revisit that question, he should articulate them to me. He did not refer to any such matters. 39During the course of the hearing, Mr Menzies also indicated that he wished further time to gather together additional evidence in support of his application for a stay of the possession orders. He did not indicate with any precision what the nature of that evidence might be, or whether it was evidence postdating my decision on 30 August 2013. If there is new evidence relevant to a stay of the possession orders, my reasons today do not necessarily preclude Mr and Mrs Menzies relying upon it, although today was the occasion to bring forth all material relied upon in support of the application they were making, and, if I may say so, a more efficient course (having regards to the stance adopted by Paccar in relation to enforcement) may well be to devote attention to the preparation and prosecution of the appeal. 40Paccar made it very plain that in the event that the appeal on 10 (and if necessary 11) February were not vacated, it would not move for its order in the motion of 9 December 2013. It is therefore not necessary for me to say anything more about that. 41For those reasons I propose to make the following orders but I will give both of you a chance to be heard on the precise form of them. [Discussion as to orders] I will formalise the orders after that discussion: (1)Dispense, to the extent necessary to do so (if any), with any further compliance with UCPR 51.24(1)(b) and (2). (2)Direct Mr and Mrs Menzies to file and serve any proposed amended notice of appeal by 5pm on Friday, 24 January 2014. (3)Direct Paccar to indicate as soon as possible, but in any event no later than Friday, 31 January 2014, whether it opposes any application by Mr and Mrs Menzies for leave to amend the notice of appeal. (4)Direct Mr and Mrs Menzies to file and serve submissions and any supplementary material on or before 4pm on Friday, 31 January 2014. (5)The directions made by me on 27 November 2013, varied by me by order 3 on 16 December 2013, as to the filing and service of Mr and Mrs Menzies' submissions, are varied accordingly. (6)Otherwise dismiss Mr and Mrs Menzies' notice of motion of 12 December 2013 as amended today and Paccar's notice of motion of 9 December 2013. (7)Liberty to apply on 48 hours' notice, by email to my Associate in the first instance. [Submissions as to costs] 42Paccar applies for its costs of the motion as determined by me today. Mr and Mrs Menzies seek that costs be costs in the cause. They say that Paccar's motion ultimately was dismissed and deny that Paccar has, therefore, enjoyed significant success today. They also say that there was substance to their complaint about non-compliance with r 51.24. 43The determination of Paccar's motion occupied very little of the hearing today. The substance of the hearing today was (1) Mr and Mrs Menzies' application for a vacation of the hearing, in which they were unsuccessful, and (2), Mr and Mrs Menzies' application to obtain a stay of the possession orders, in respect of which they were unsuccessful. In my view an appropriate order reflecting the success of the parties is that Mr and Mrs Menzies pay Paccar's costs of the motions of 9 and 12 December 2013. I make the following further orders: (8)Mr and Mrs Menzies to pay Paccar's costs of the motions of 12 and 9 December 2013. (9)Note that Paccar will file and serve copies of the red and black books (the black book including the transcripts of 13 and 14 May and 13 June 2013) on or before 29 January 2014. ********** Amendments 24 January 2014 - Insertion of "(No 2)" to differentiate this decision from Menzies v Paccar Financial Pty Ltd [2013] NSWCA 283 Amended paragraphs: Case title DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 January 2014