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. A stay was then sought of the orders made by Young J. However, in my view the stay should not be granted. The opponents have been kept out of their money for a very long time. It was not suggested that there was any risk that the moneys would be irrecoverable if paid to the opponents. On the contrary, that suggestion was not urged upon the Court. It was acknowledged, as Young J recorded twice in his judgment, that the claimant agreed that the company would be wound up in due course. Therefore the question is only the timing of it. Yet the purpose of the stay sought was said to be to prevent the winding up. Its real purpose was no doubt to ensure that those presently behind the claimant, and not the receiver, control the litigation of the appeal. It is true that in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 the Court re-examined the principles upon which stays are granted. It is not necessary, in order to secure a stay, to prove exceptional grounds. But in every case the exercise is in the discretion of the 2 UNREPORTED JUDGMENTS Court. Reasons must be shown to disturb the authority and force of the orders made below, as in this case by Young J. They remain valid orders until set aside on appeal. Such reasons have not been advanced in this case to my satisfaction. The reasons why I have reached that conclusion are sufficiently elaborated in exchanges between the Court and counsel. I will not repeat them now. The orders which I therefore propose are: (1) Stand over to the hearing of the appeal the summons for leave to appeal. Costs of the summons, costs in the appeal; (2) Dismiss the motion for a stay. The costs of the proceedings before the Court today on the motion, being the substantial costs incurred in the time taken by the Court and the substantial matter which the parties came to argue, will be the opponents' costs in the appeal and will be paid by the claimant in any event. Counsel for the Claimant: T Jucovic Counsel for the Opponent: RJ Bainton QC and PF Esler