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. Having heard the parties in relation to the matter the learned judge refused the relief sought in the summons. He made an order as follows: "The orders are that the amended summons be dismissed. Both plaintiffs to pay the defendant's costs. Exhibits can be returned. The existing injunction is dissolved immediately. I order the plaintiffs hand to the defendant's representatives the keys to the subject property". The matter subsequently came before the Court of Appeal in chambers and an application was made to the President. On 10 September 1992 the matter came before the Court of Appeal in court and the proceedings which took place are recorded in the transcript of those proceedings. Those proceedings were not in a position to proceed: no papers were available to the members of the court and no notice of appeal had been filed. The court was informed (again I put the matter generally) that copies of the papers were being prepared and that a form of notice of appeal was being drafted and/or prepared. The court in order to determine what course should be taken enquired of the parties in respect of two matters: first, the payment of the outstanding rent then due, an amount of some $2,866 in respect of the period July/August 1992 and, 2 UNREPORTED JUDGMENTS secondly, in respect of the maintenance of the status quo. Again putting the matter in the most general terms and I appreciate somewhat inaccurately, the result of what took place on 10 September was that there was if not an undertaking at least an indication given on behalf of the plaintiffs that the amount of $2,866 would be paid into court by 4 pm on 10 September 1992 at the latest and on that basis an undertaking was given on behalf of the defendant to preserve the status quo in respect of the premises until 5 pm today. The matter came before this Court this morning. It appears that no notice of appeal has yet been filed and, accordingly, the filing fee of some $1,500, as the court is informed, has not been paid. The amount of $2,866 has not been paid into court in accordance with the undertaking or indication given to the court yesterday. The court has been informed by Mr Eagle from the Bar table that in fact an attempt was made to pay a sum into court by bank cheque at a time after the court was closed and reference was made by him to the time of 7 o'clock or 7.30 pm yesterday. I do not express a final view as to what the substance of the matter in that regard is. The simple fact is that that amount was not paid into court. It is proper to record that yesterday in connection with the undertaking or offer to pay the sum into court the President indicated to the parties that unless that amount was paid into court the matter would not proceed today. The payment into court was, as I have described it in argument, essentially a price for the court dealing with the matter urgently and in the circumstances then existing. I do not mean by this the term "price" is to be understood as a payment extracted as the basis of dealing with it. I indicate that the payment of the amount was required as it were as an indication or assurance of the bona fides and purposes of the plaintiff in relation to the matter. When the matter came before the court this morning, counsel was asked what the position was and he indicated the position generally as I have outlined it. The court has now been informed from the Bar table that Mr Eagle's instructions as far as he has been able to gather them are that the client has not yet attended at the solicitor's office this morning and that, as far as he is aware, the amount of the filing fee in respect of the notice of appeal is not presently available. However, as I understand what has been said a bank cheque is available in respect of the amount of $2,866. The question now to be determined is what course should be taken. No notice of appeal has formally been filed. The court has dealt with the matter upon the basis that a notice of appeal would have been filed and will be filed. No notice of appeal having been filed and in the light of the general circumstances, in my opinion the matter should not proceed at the present time. If the plaintiffs desire to file a notice of appeal against the orders made by Windeyer J on 9 September 1992 they may, of course, do so. They may do so in the ordinary course. If a notice of appeal is filed then it will be open to them to seek such relief pending the determination of the appeal as may be appropriate in the circumstances. If they desire such relief it will be necessary for them to move formally for it and support the application by appropriate evidence. It may be that if any application were made, the court would require the payment into court of at least the amount presently outstanding in respect of rent and it may be would impose other conditions. They are not matters in respect of which I do otherwise than speculate. But the position now is that the matter is not in a position to proceed. In my opinion, therefore, the proper course to be followed this morning is merely to refuse to make any order in relation to the matter and allow the proceeding to URJ MILDWING AND ANOR v CORPCODE NO (7) PTY LTD (Handley JA) 3 stand until the plaintiffs file, if they desire so to do, an appeal in relation to the matter. As I have said, after that is done then appropriate relief may be sought in the ordinary way. That leaves outstanding two matters. The first is the undertaking which was given on behalf of the defendant yesterday for the purpose of preserving the status quo. That undertaking was clearly given upon the basis of the undertaking or indication which had been given as to the payment of money and as I infer upon contemplation that the matter would proceed today. ORDER In the circumstances I do not think that the defendant should be held to any such undertaking and I propose that the undertaking which in terms extended until 5 pm today should be released. The other matter is the costs of the proceedings to date. In my opinion in the circumstances an order should be made that the costs of the proceedings in the nature of appeal or by way of application for interlocutory relief following the order of Windeyer J should be paid by the plaintiffs. I would propose an order to that effect be made. Clarke JA I agree. Handley JA I also agree. Mahoney JA: The orders are then as I have proposed. The result of the matter is that no other order is now made and the parties may deal with the matter in the manner to which I have referred or otherwise as they may be advised. [Mr Gray sought an order under Pt52 R28A] Mahoney JA: I gave consideration to that. For myself, I was tempted to make such an order but we do not know all of the circumstances in relation to the matter and in the absence of an investigation of the way in which the matter has been conducted I myself would not be prepared to propose such an order at the moment. I speak for myself, of course. The other judges of the court may have other views. I think in fairness to the legal representatives whose conduct might be called in question otherwise, I do not think the order should be made without going into the detail of it. [Mr Gray informed the court the lease provided for costs between the parties to be payable on a solicitor/client basis and in the circumstances made application for that. The court declined to make such order].