James Vos v Macquarie Leasing Pty Limited

Judgment

1. BARRETT AJA: This is an application for leave to appeal in respect of interlocutory orders made by Judge Maiden in District Court proceedings brought by Macquarie Leasing Pty Ltd ("Macquarie") against seven defendants.
2. The essence of the proceedings as disclosed by Macquarie's statement of claim may be shortly stated. Macquarie extended financial accommodation to a company called Specialized Towing Pty Ltd by way of chattel mortgage for the acquisition, for some $195,000, of a quad-axle trailer manufactured by Australian Trailer Industries Pty Ltd ("ATI"). The funds were advanced by Macquarie in February 2014 against an invoice issued to Specialized Towing by ATI, showing that the trailer had been built in that month and had a particular vehicle identification number.
3. When Specialized Towing fell into default in the making of payments, Macquarie terminated the finance contract and sought to obtain possession of the trailer. Macquarie sues Specialized Towing as first defendant and certain guarantors of its obligations as second to fifth defendants. The first to fifth defendants will be referred to as the "Specialized parties". The claims against the Specialized parties are contractual in nature.
4. ATI is sued as sixth defendant, the claims against it being in essence that it engaged in misleading or deceptive conduct by issuing the invoice and thereby committed a statutory wrong. The seventh defendant is Mr Vos, who was at material times the sole director of ATI. The case brought independently against Mr Vos is that he induced and was knowingly concerned in the statutory wrong committed by ATI and that he himself made certain actionable misrepresentations. Macquarie claims damages against Mr Vos.
5. One of the orders of Judge Maiden in respect of which leave to appeal is sought concerns a notice to produce served on Macquarie by Mr Vos. By that notice, Mr Vos sought production by Macquarie of a deed by which the proceedings had been settled as between Macquarie and the Specialized parties, leaving ATI and Mr Vos as the only continuing defendants, although it appears that by that time ATI was in liquidation.
6. On 3 June 2016 the primary judge ordered on Macquarie's application that the notice to produce be set aside. In the course of the same hearing, his Honour granted leave for Macquarie to discontinue as against the Specialized parties. It seems that the application for that leave was made by the Specialized parties rather than Macquarie. On 7 June 2016 his Honour ordered that Mr Vos pay both Macquarie's costs and the Specialized parties' costs of the 3 June 2016 hearing. A gross sum was fixed by each costs order. Leave to appeal is sought in respect of the two costs orders as well as the order concerning the notice to produce.
7. As regards the notice to produce, Mr Vos says that the primary judge should have proceeded on the basis of a statement in an equity division case that production of documents under r 34.1 of the Uniform Civil Procedure Rules 2005 (NSW) is not confined to documents relevant to a fact in issue. Mr Vos also says that, in any event, the settlement deed between Macquarie on the one hand and the Specialized parties on the other had a potential relevance to the Macquarie-Vos controversy not recognised by the primary judge. His Honour said the deed had no relevance, except perhaps in relation to damages.
8. This was in a context where a large part of the deed's content had already been disclosed. Mr Vos argues that, despite the disclosure already made, relevance of undisclosed parts may extend to all or any of the role that the invoice played in inducing the financing transaction, the reliance in fact placed on the invoice, the continuing rights of Macquarie and the quantum potentially recoverable from Mr Vos in light of the terms of the deed. Reference was made in that respect to Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; [2001] HCA 66.
9. Mr Vos also argues that the primary judge failed to give adequate reasons for his decision. This last matter may be dealt with at once. The primary judge gave reasons. They were briefly stated but concise, to the point and quite sufficient for the purpose. Mr Vos's proposed appeal on that front has no prospects of success.
10. As to the balance of the contentions regarding the decision to set aside the notice to produce, the position is that if leave to appeal were granted, this Court would be invited to reverse a decision that was obviously discretionary, so that appellate intervention would be warranted only on the principle stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. The fact that the impugned decision was a decision on a matter of practice and procedure means that this Court should be slow to interfere and accordingly would not reverse the judge's decision unless convinced that it was plainly erroneous: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39. As Bryson JA said in New South Wales v Mulcahy [2006] NSWCA 303 at [3] "such appeals are, appropriately, kept on a tight rein".
11. Moreover and as the primary judge pointed out, it would be open to the trial judge, if it becomes apparent that the document covered by the notice to produce is relevant to the issues in dispute as the trial unfolds, to require their production at that point. As has already been noted, parts of the deed's content have already been disclosed.
12. Mr DeBuse, who appeared for the applicant, argued that there is a question of general principle about whether one party to a multi-party suit should have access to a settlement deed executed by the other parties. But the reality is that the key provisions have already been provided and the supposed issue of principle to which Mr DeBuse referred was not put with any degree of clarity to the primary judge or in the written submissions to this Court.
13. In the whole of the circumstances, no question of principle or of general importance is at stake, and no circumstance justifying a grant of leave to appeal in respect of the order concerning the notice to produce has been shown.
14. As to the costs orders in respect of which leave to appeal is also sought, Mr DeBuse accepted that it follows from the conclusion I have stated with respect to the order concerning the notice to produce, that there should be no grant of leave in that respect either.
15. In my opinion, the summons seeking leave to appeal should be dismissed with costs.
16. SACKVILLE AJA: I agree with the reasons given by Barrett AJA. [SUBMISSIONS ON COSTS]
17. SACKVILLE AJA: Subject to dealing with the notice of motion, which I shall come to in a moment, the orders of the Court are: 1. The summons for leave to appeal is dismissed. 2. The applicant pay the respondents' costs of the summons for leave to appeal.
18. Having regard to what has been said by Mr DeBuse, quite properly, it is necessary to deal with the notice of motion that has been filed on behalf of Macquarie.
19. The notice of motion seeks an order that a fresh notice to produce, which was filed on 21 October 2016 should be set aside on the grounds that it is an abuse of process; Mr DeBuse properly concedes that such an order should be made on the assumption that the application for leave to appeal is dismissed, as it has been.
20. Accordingly, in relation to the notice of motion filed on 27 October 2016, the order of the Court is: (3) Pursuant to Uniform Civil Procedure Rules r 33.4, the whole of the notice to produce filed on, and/or served on 21 October 2016 by the applicant be set aside on the ground that the notice to produce constitutes an abuse of process of the Court. [FURTHER SUBMISSIONS ON COSTS]
21. SACKVILLE AJA: The order of the Court is: (4) The applicant pay the first respondent's costs of, and incidental to, the notice of motion filed on 27 October 2016.