LONGREACH GOLD OIL LTD v GENOA RESOURCES AND INVESTMENT LTD (IN LIQUIDATION) and ANOR [NO 2] [1991] NSWCA 174

LONGREACH GOLD OIL LTD vy GENOA RESOURCES AND INVESTMENT LTD (IN LIQUIDATION) and ANOR [NO 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 9 September 1991, 9 September 1991 [1991] NSWCA 174

PRACTICE and PROCEDURE — Court of Appeal — stay of execution of judgment — judgment against public company for unpaid loan — dispute about proper credit — appeal against judgment — grounds of appeal "weak" — notice to wind up company — risk of disproportionate 1068 to shareholders held: Stay of five weeks granted to permit company to raise judgment debt to be paid into joint account to abide outcome of appeal.

COMPANY LAW — public company — notice to wind up based upon unpaid judgment debt — appeal against judgment — whether execution should be stayed — held: The intangible value of the public listing was such that a short stay should be provided to protect the shareholders against disproportionate loss — stay of five weeks provided on terms.

Corporations Act 1989 (Cth), s462(a).

Kirby P The background facts of the motion before the Court are described in reasons which I gave on 3 September 1991 for the brief stay of execution which I there provided. See Longreach Gold Oil Ltd v Genoa Resources Pty Ltd (In Liquidation) and Anor [No 1], Court of Appeal, unreported, 3 September 1991.

Judgment entered for a loan unpaid by public company It is enough to say that proceedings have been commenced by Genoa Resources Investment Limited (In Liquidation) (the first opponent) and Hartigan Energy (In Liquidation) (the second opponent) in the Commercial Division of the Supreme Court. Those proceedings were brought against Longreach Gold Oil Limited, a public company (the claimant). The proceeding were heard on 29 October 1990 by Brownie J. The issue before Brownie J as raised by the pleadings was whether the debt for a loan was owing by the claimant to the first or to the second opponent The only evidence before his Honour was evidence which suggested that the debt was owing to the first opponent. Counsel who then appeared for the claimant withdrew following his Honour's indication that he was "totally against" the claimant's submissions. Accordingly, on the material which was before his Honour it is unsurprising that he proceeded in the absence of the claimant to give judgment for the first opponent.