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. The only matter which is relevant in the previous proceedings is the order of Young J concerning the obligation of the first claimant to give notice to the Attorney General before commencing any proceedings. The first claimant has informed the Court that notice of the present notice of motion was given to the Attorney General on 28 August 1989. An affidavit was placed before the Court in which some evidence was provided that the notice was given to officers of the opponents and of the Attorney General. No point has been 2 UNREPORTED JUDGMENTS raised concerning compliance with the obligation, at least for the purposes that the matter is now before me and the order which I propose to make. I do not, therefore, have to determine the issue. Relief against receiver - for Equity Division As Clarke JA pointed out to the first claimant on the last occasion, relief against the receiver and orders of the Court relating to the disposition by the receiver of the assets of the company are not matters which ordinarily come first before the Court of Appeal. They are matters which are dealt with in the Equity Division of the Supreme Court. So should be the relief which the claimant now seeks. It is therefore appropriate to terminate those proceedings in this Court. In doing so I have not overlooked the provisions of s44 of the Supreme Court Act. But no reason has been shown why the ordinary Divisional arrangements of the Supreme Court should not be followed. The question arises as to whether the motion should simply be struck out as a misconceived invocation of the jurisdiction of the Court of Appeal. The opponents agreed that it would be more appropriate, economical and saving of time and costs for an order to be made under s51(2)(b) of the Supreme Court Act remitting the matter to the Equity Division where, if anywhere, it can be dealt with. When the matter comes before the Equity Division more detailed consideration can be given by the Division to whether there is any legal basis for the first claimant's claim and whether there has indeed been compliance by the first claimant with the order made by Young J relating to notice before commencing further proceedings. Nothing I have said should be taken to foreclose the further consideration and determination of those issues. For completeness I should say that the second opponent, the wife of the claimant, was not present in court to support the notice of motion although it purports to be issued in her name. This may have been as a result of the fact that on a previous occasion she indicated, in another context, that she wished the claimant to speak for her. She was then excused by Clarke JA. It may be she has misunderstood the order made by Clarke JA relieving her of attendance in those proceedings to relieve her of her attendance in respect of this motion. If she wishes to support the motion she should be present on the occasion that the matter is listed in the Equity Division. None of the companies which are named as claimants in the motion are here today. Mr Solomon sought leave to mention the matter on behalf of the companies. However, the authority of the Court stands against his having such leave or being granted the right to appear for the companies in these circumstances. See Bay Marine Pty Ltd v Clayton County Properties Pty Ltd (1986) 8 NSWLR 104. In view of the course which I have taken of referring the motion to the Equity Division it is not necessary for me to deal in any way with that matter. No specific relief on the ground of the non-appearance of the companies has been sought by the opponents. The orders therefore made are: 1. That the notice of motion be remitted to the Equity Division; 2. That the first claimant, having incorrectly commenced the motion in this Court, and notwithstanding the exchange on the last occasion with Clarke JA pointing to that error, should pay the costs of the opponents of and incidental to the motion.