Nand v Fuji Xerox Australia Pty Ltd [2014] NSWCA 294

Nand v Fuji Xerox Australia Pty Ltd [2014] NSWCA 294

The decision under appeal was interlocutory and, under s 101(2)(e) of the Supreme Court Act 1970 (NSW), leave was required. Because Ms Nand had filed only a notice of appeal and no application for leave, despite being aware of the competency objection before the hearing, the purported appeal was an incompetent invocation of the Court's appellate jurisdiction. There was no good reason to adjourn Fuji's motion, particularly as the adjournment application was unsupported by evidence and the sequestration order remained on foot with the trustee not having authorised the appeal.

Jurisdiction
Australia
Judgment Date
25 August 2014
Procedural Posture
Appeal; Interlocutory Application / Notice of Motion for Summary Dismissal of a Purported Appeal in the Court of Appeal
Outcome
Proceedings dismissed as incompetent; Ms Nand ordered to pay Fuji's costs of the notice of motion filed 11 July 2014 subject to Fuji's undertaking not to enforce the costs order against the trustee in bankruptcy.
Legal Topics
['competency of Appeal' 'leave to Appeal From Interlocutory Decision' 'summary Dismissal' 'adjournment' 'sequestration Order and Trustee Authority']
['civil Procedure' 'appeals' 'bankruptcy'] ['competency of Appeal' 'leave to Appeal From Interlocutory Decision' 'summary Dismissal' 'adjournment' 'sequestration Order and Trustee Authority']

Case Brief

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Procedural Posture

Appeal; Interlocutory Application / Notice of Motion for Summary Dismissal of a Purported Appeal in the Court of Appeal

Legal Issues

  1. 1 ['Whether the purported appeal from the decision of Nicholas AJ was incompetent because the decision was interlocutory and no leave to appeal had been sought or granted.' "Whether Ms Nand's application to adjourn Fuji's notice of motion should be granted." "Whether the sequestration order and the trustee's position supported dismissal of the purported appeal."]

Ratio Decidendi

The decision under appeal was interlocutory and, under s 101(2)(e) of the Supreme Court Act 1970 (NSW), leave was required. Because Ms Nand had filed only a notice of appeal and no application for leave, despite being aware of the competency objection before the hearing, the purported appeal was an incompetent invocation of the Court's appellate jurisdiction. There was no good reason to adjourn Fuji's motion, particularly as the adjournment application was unsupported by evidence and the sequestration order remained on foot with the trustee not having authorised the appeal.

Court Disposition

Proceedings dismissed as incompetent; Ms Nand ordered to pay Fuji's costs of the notice of motion filed 11 July 2014 subject to Fuji's undertaking not to enforce the costs order against the trustee in bankruptcy.

Orders

  • ['These proceedings be dismissed as incompetent.' "Upon the undertaking proffered on behalf of Fuji not to take any step to enforce this order against the trustee in the bankrupt estate of Ms Nand, I order that she pay Fuji's costs of the notice of motion filed 11 July 2014."]