MEGADATA PTY LTD and ANOR v TRADE WINS PTY LTD [1992] NSWCA 150

MEGADATA PTY LTD and ANOR v TRADE WINS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 9 March 1992

[1992] NSWCA 150

Mahoney JA This is a motion for stay of execution upon a judgment. It comes before the court in a complex situation. Apparently, as counsel have informed me, a notice to produce was given in the context of that motion on 10 February 1992. Clarke JA directed that that notice to produce be complied with by 17 February 1992. It was not complied with. Statements have been made from the Bar table as to why it was not complied with. The position now is that the applicant upon the motion seeks an adjournment of the motion. The reason for that is that a challenge has been made to the competence of the appeal. It has been suggested that leave to appeal is necessary and the applicant on the motion for a stay desires to have time to consider that and, if necessary, to bring on a motion for leave. That motion will come on in about two weeks time.

The question has arisen as to the effect in the meantime of the notice to produce. It appears likely, but not certain, that a motion for leave to appeal will be filed or, alternatively, if it is not filed a motion will be filed for striking out of the appeal on the ground that it is not competent.

The present application can be dealt with in the context of either of those motions. The problem is that of course neither of them has yet been filed. What I propose to do is to stand over this motion for two weeks to allow the parties to decide whether one or both of those motions are to be filed and if either of them is filed then the present motion, that is, for stay of execution, can be dealt with when the subsequent application, in respect of the competence of the appeal, is dealt with.

l order this matter stand over for three weeks to 30 March 1992. Costs of today to be reserved. The parties may apply to the Registrar, and I hope they will agree upon this, for this motion to be listed on the day on which there comes before the court the motion testing the validity of the appeal.