DINDORI HOLDINGS PTY LTD v INTERNATIONAL RIGGING AUSTRALIA PTY LTD [1991] NSWCA 78

DINDORI HOLDINGS PTY LTD v INTERNATIONAL RIGGING AUSTRALIA PTY LTD

SUPREME COURT OF NEW SOUTH WALES

MAHONEY JA 21 October 1991

[1991] NSWCA 78

Mahoney JA This is an application for the stay of an order made by Cole J on or about 2 August 1991. His Honour, the Court is informed, confirmed the award or findings of a referee in relation to a dispute between the parties concerning a building project.

The Court is informed that the effect of the confirmation is that the finding of the referee takes effect as a judgment of the Court and in order to determine whether the stay should be granted, it is relevant for the Court to have regard, inter alia, to the substance of the appeal and to the protection of the parties pending the determination of the appeal.

The Notice of Appeal which has been filed has only one ground. That is in the following terms:

"That his Honour erred in confirming the finding of Mr Referee B McGregor QC that there exists between the parties a concluded agreement." That ground of appeal is, to put the matter shortly, singularly unforthcoming and it is not possible to judge from the terms of that ground, whether the appeal is a bona fide appeal or whether it has a reasonable prospect of success.

Mr Ryan for the applicant, having had his attention drawn to this matter, would propose to seek an amendment to the ground of appeal in order to make clear the precise matters that are in question and no doubt if the appeal proceeds that will be done.

I shall proceed upon the basis that some appropriate form of appeal will be formulated to indicate that the appeal has in form a reasonable chance of success.

It has not been suggested in terms that the appeal is not bona fide. But Mr Ellicott has properly pointed out, although there is no material before the Court on which to deal with these matters, that in his client's view, there may well be little prospect of the appeal succeeding.