COMMUNICATIONS GROUP (AUSTRALIA) PTY LTD v BRIEN [1992] NSWCA 45

COMMUNICATIONS GROUP (AUSTRALIA) PTY LTD v BRIEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY J 23 January 1992

[1992] NSWCA 45

Handley J This is an application by the claimants, Communications Group (Australia) Pty Ltd, for interlocutory relief pending the hearing of an appeal from a decision of Cole J as the vacation judge sitting in Equity which was given on Friday 17 January this year.

It is not in dispute and not in doubt that the claimant has an appeal as of right to this Court from the decision of Cole J, his Honour having dismissed absolutely the claimant's summons for relief and not merely refused interlocutory relief pending the hearing of the proceedings.

The circumstances in which this Court will grant interlocutory relief pending the hearing of an appeal as of right, are not in dispute and are not dissimilar to the circumstances in which the interlocutory relief will be granted by a judge in a Division pending the hearing of proceedings for final relief in the Division.

The moving party must establish that there is a serious question to be determined and once this issue has been decided in favour of the moving party then questions of irreparable injury and the balance of convenience have to be weighed and call for the exercise of an active discretion on the part of the Court.

So far I have only heard argument on the question whether there is a serious issue to be determined in the appeal pending from the decision of Cole J.

The proceedings arise out of the sale of a business by the second opponents to the claimants. The sale took place late last year and part of the purchase price was secured to the vendors, the second opponents, by a mortgage debenture granted by the claimants over the assets of the business. These include retail clothing shops located in O'Connell Street in the city and at Neutral Bay.