SOLOMON v CORPORATE AFFAIRS COMMISSION [1989] NSWCA 188

SOLOMON v CORPORATE AFFAIRS COMMISSION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 4 September 1989

[1989] NSWCA 188

RECEIVERS — order for disposition of assets of company in liquidation — claim for order that funds be made available to support appeal — claim lodged in Court of Appeal — held: Claim was properly brought, if at all, in the Equity Division not the Court of Appeal and accordingly motion remitted to that Division. Supreme Court Act 1970, s44, s46, 51(2)(b).

ORDERS 1. The notice of motion is remitted to the Equity Division; and 2. The first claimant to pay the opponents' costs in the Court of Appeal.

Before the Court is a notice of motion by which the first claimant, Eddie Solomon, seeks an order of this Court that the second opponent, Alexander Robert McKay McIntosh, a receiver, pay the claimant's legal expenses for the prosecution of an appeal which the claimant has brought to the Court. The motion seeks an order that the receiver pay the expenses out of the funds which the receiver is holding pursuant to orders made in the Supreme Court appointing Mr McIntosh receiver of the assets of the relevant company. Further orders are sought as well as orders as to costs. I am dealing with this matter pursuant to s46 of the Supreme Court Act 1970.

Earlier proceedings on an appeal

The matter comes before the Court against the background of other proceedings which had previously been before the Court. The last occasion was before Clarke JA, sitting alone, on 24 July 1989. The earlier proceedings concern an appeal from orders made by Young J in the Equity Division of the Supreme Court. Two grounds of opposition were raised on 24 July 1986 to the claimant's appeal. The first was that the first claimant had not complied with an order of Young J that notice be first given to the Attorney General before any fresh steps were taken by him in the litigation. It was contended that no notice had been given of the notice of appeal before it was filed. Secondly, it was alleged that the notice of appeal was, on its face, embarrassing and should be struck out by the Court. A motion for the striking out of the appeal was filed by the Corporate Affairs Commission as claimant. Those proceedings took some little time in argument before Clarke JA. Ultimately, orders were made by his Honour standing the proceedings over to be heard on 11 September 1989. They will therefore come into this Court's list next week. It is not necessary for me now to deal with them.