IMMER (NO 145) PTY LTD v THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) [1992] NSWCA 112

IMMER (NO 145) PTY LTD v THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 24 February 1992

[1992] NSWCA 112

Mahoney JA This is an application for the stay of the execution of a judgment of this Court or, more accurately, for a stay of the effect of it pending the determination of an application to the High Court of Australia for special leave to appeal against that judgment.

The circumstances out of which the application arises are broadly these. The Uniting Church in Australia Property Trust, to which I shall refer as "the Church", and Immer (No 145) Pty Ltd, a company, entered into an agreement by deed dated 4 October 1988 for the Church to sell to the company (as it has been described) air space rights for a sum of $2,306,600.

Disputes arose between the parties in relation to the transaction and the company took the view, I put the matter broadly, that it was not obliged to pursue the contract. Young J who heard the dispute between the parties originally appears to have supported the company's view. However, on appeal to this Court, his Honour's view did not find favour and the orders he made were set aside. In September last, this Court made an order declaring in substance that the contract contained in the deed subsisted and continued on foot and that it should be specifically performed.

The matter was referred to the Master in Equity inter alia to fix a date, time and place at which the agreement was to be completed, and to do various other things.

The company has sought leave to appeal to the High Court against this Court's order and I am informed by Mr Conti QC, for the company, that the hearing of that special leave application has been fixed for 10 April 1992. The matter has come to a head because the date fixed by the Master for completion is before 10 April 1992 and, therefore, it is not possible to determine prior to the date fixed for completion whether leave to appeal will be granted and, of course, whether the resulting appeal to the High Court will be successful.