KERRY LOWE MANAGEMENT PTY LTD v ISHERWOOD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and CLARKE JJA 22 February 1990 [1990] NSWCA 106 Samuels, Priestley and Clarke JJA This appeal was decided by the Court last year, judgment being given on 21 June. We indicated our conclusions and the reasons for them and left the formal orders to be made pending short minutes being brought in by the parties. There has been considerable delay but we are told that efforts have been made to bring the matter before the Court, and certainly one of our number was on leave for some time during the latter part of last year. The problem which has arisen can be compendiously described. Counsel for the claimant for special leave, the appellant if leave were granted, said when opening the argument, that if he were unsuccessful in the appeal he would discontinue the balance of the proceedings, the proceedings being various claims against receivers and managers; the point which was before us concerning their appointment. This undertaking was accepted by Mr McClintock for the opponent who, on that footing, supported the application for leave. It is now contended by the respondent that in the events that have happened that undertaking should be honoured so that the proper order for the Court to make includes the general dismissal of the proceedings. We have heard argument about this. We have come to the conclusion that the undertaking was ambiguous, that primarily what Mr Robinson, counsel for the claimant, had in mind was the validity of a joint and several appointment of the receivers and managers, and as it turned out we came to the conclusion that that appointment was not valid, although a joint appointment was and could be sustained by the documents of the actual appointment made. We must also, we think, bear some responsibility ourselves for any difficulty which has arisen, because after argument which involved the saving of the appointment on the footing that it was a joint appointment, we did not inquire at the end of that argument what would then be the state of the undertaking in the event that the middle ground became the preferred option. We do not think it would be fair, therefore, to hold the appellant to the undertaking to abandon the whole of the proceedings, and we should add that we do not think that that view involves any unfairness to the respondent. As we have already said we do not for a moment suggest that Mr Robinson was guilty of any intention to deceive or mislead the Court, and perhaps we might record that Mr McClintock has very handsomely said that that is his opinion too. Accordingly we propose to make the orders in short minutes which we have handed to counsel and which contain a slight variation on those which were supplied to us on the appellant's behalf the other day. Accordingly our formal orders are that we make the orders in pars 1 to 5 of the short minutes which I will initial and place with the papers. (Counsel addressed on the question of costs). The costs of the mentions on two occasions this week, including today, will be costs in the appeal.