BEAU RIVAGE PTY LTD v BERNHARDT [1989] NSWCA 18

BEAU RIVAGE PTY LTD v BERNHARDT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and MEAGHER JJA 1 May 1989, 1 May 1989

[1989] NSWCA 18

PRACTICE and PROCEDURE — decision on a separate question final judgment — whether leave to appeal necessary under Supreme Court Act 1970, s103 — held: Leave probably not necessary but summons for leave to appeal stood over to be heard, if necessary, concurrently with the appeal brought purportedly as of right. Smith v Tabain (1987) 10 NSWLR 562 referred to.

PRACTICE and PROCEDURE — stay — to stop winding up of company appellant — agreed will be wound up in future — agreed as risk that moneys will not be recoverable — reasons necessary to secure a stay — held: Stay refused. Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 referred to. ORDERS 1. Stand over to the hearing of the appeal the summons for leave to appeal. Costs of the summons, costs in the appeal. 2. Motion for a stay dismissed. The costs of the motion to be opponents' costs in the appeal.

Kirby P When this matter originally came before the Court it was a summons for leave toappeal. However, in the course of argument it appeared that it was appropriate to transfer the summons to be heard by the Court hearing the appeal purportedly brought as of right. It was the contention of counsel now appearing for the claimant that there was an appeal as of right. That argument was not controverted by counsel for the opponents. The authority of Smith v Tabain (1987) 10 NSWLR 562 and other cases suggest that, notwithstanding s103 of the Supreme Court Act 1970 in the circumstances of the case, there is an appeal as of right. In those circumstances the appropriate course is to stand the summons over to the hearing of the appeal. It can lie in reserve, in case the Court hearing the appeal forms a view different from that which this Court is inclined to take in the light of the position of the parties, namely, that the appeal lies here as of right. Accordingly the summons for leave to appeal will be stood over to be heard with the appeal. The notice of appeal purportedly filed will be taken as having been filed in the appeal. The costs of the summons will be costs in the appeal.