MAWBEY v JANNINE PTY LTD (No 2) [1990] NSWCA 121

MAWBEY v JANNINE PTY LTD (No 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 24 April 1990, 24 April 1990

[1990] NSWCA 121

PRACTICE and PROCEDURE — Court of Appeal — proposed application for special leave to appeal to High Court — proper approach to preservation of status quo pending — provision of stay or injunction or equivalent relief for that purpose — motion to extend caveats to protect claimant's alleged interest in land — Hodgson J declines to do so on the basis of balance of convenience — Court of Appeal dismisses summons for leave to appeal applying to Svanosio v McNamara and Another (1956) 96 CLR 186 — evidence of foreshadowed notice to complete by later purchase of property if caveats are maintained — held: The caveats should be extended for a short time until the claimants can bring the matter before the High Court to consider the application for special leave. Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 1 ALJR 102, 107; John Fairfax and Sons Ltd v Kelly [No 2] (1987) 8 NSWLR 510; Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125 referred to and applied.

Kirby P This morning the Court determined a summons for a leave for appeal brought by Ronald Lindsay Mawbey and Others from a judgment of Hodgson J given on 10 April 1990. The summons had been part-heard from yesterday. It was then adjourned in order to permit the claimants to provide the Court with supplementary written and oral submissions on a matter which had been raised in the course of argument before the Court. The Court referred counsel then appearing for the claimants to the decision of the High Court in Svanosio v McNamara and Another (1956) 96 CLR 186. It appeared to the Court that the holding in, or the fundamental reasoning of, that decision stood in the way of the success of the claimants in the application in this Court for leave to appeal.