WANARI PTY LTD v MERCY AND SONS PTY LTD [1991] NSWCA 276

WANARI PTY LTD v MERCY AND SONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY, JJA 26 August 1991

[1991] NSWCA 276

Clarke JA The court has before it an application for a stay of orders made by Cole J on 16 August 1991 pending the hearing of an application for leave to appeal from those orders.

On that date, that is 16 August 1991, Cole J granted the stay in respect of a judgment entered by Brownie J on Friday 15 March 1991 upon a number of conditions, including one which required the payment by the claimant of the sum of $400,000 to the opponent on or before 5 pm on 19 August 1991. His Honour also said that in the event of any of the conditions not being complied with the stay was to immediately cease.

It is clear that no moneys were paid by the claimant to the opponent prior to 5 pm on 19 August 1991 and in accordance with his Honour's judgment the stay immediately ceased.

The order made by his Honour is not without complications, but the present application has been pursued upon the basis that the stay then granted terminated at about 19 August 1991 with the consequence that there is no stay presently in existence.

In effect, the present application is for a stay of the judgment entered by Brownie J pending the determination of the leave to appeal from Cole J's decision. Although no formal application of that nature has been filed the court has proceeded upon the basis that that is the application presently being considered by it.

The facts which led up to the present situation are set out in some detail in the judgments of Brownie J of 27 February 1991 and 15 March 1991 and the judgment of Cole J of 16 August 1991. In these circumstances it is necessary only to offer a short summary.

The claimant engaged the opponent as its builder to construct a retirement village for it. The contract was dated 9 August 1987 and it would appear that on 20 May 1988 the claimant terminated the contract.