MILDWING AND ANOR v CORPCODE NO (7) PTY LTD [1992] NSWCA 156

MILDWING AND ANOR v CORPCODE NO (7) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and HANDLEY JJA 11 September 1992

[1992] NSWCA 156

Mahoney JA This matter comes before the court in somewhat unusual circumstances. On 3 September 1992 a summons was filed in the Equity Division and an interim injunction was given, the effect of which was (I state the matter generally) to secure the continued possession of premises at 17 Elizabeth Bay Road, Shop One at that address under an existing lease of the premises from Corpcode No (7) Pty Ltd to Mildwing Pty Ltd. I use the phrase "existing lease" without prejudice to the ultimate rights of the parties.

The matter was relisted in the Equity Division on 9 September 1992 and came before Windeyer J. An amended summons was filed and consequential orders were made. Those orders included the adding as a plaintiff of the company Swanelm Pty Ltd. The learned judge heard evidence on that occasion and apparently had before him documentary material. The relief sought in the amended summons is set forth in the document which is in the court file and to which the court may appropriately have reference. It appears to involve in paral and para2 interlocutory relief of various kinds directed to secure that the lessee under the lease to which I have referred, Mildwing Pty Ltd, and/or Swanelm Pty Ltd, remain in possession pending the determination of the proceedings. It appears to involve also a claim for a declaration that the lease is subsisting, valid and enforceable and an order that the lease be transfered from Mildwing Pty Ltd to Swanelm Pty Ltd "pursuant to s133B of the Evidence Act 1919 and that the plaintiffs and defendant do all that is necessary and execute all such deeds and other documents as shall be necessary to effectuate such transfer". Alternatively, the summons seeks an order relieving the plaintiffs against forfeiture of the lease.