MILDWING PTY LTD v CORPCODE No (7) PTY LTD [1992] NSWCA 155

MILDWING PTY LTD v CORPCODE No (7) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJ 3 December 1992, 3 December 1992

[1992] NSWCA 155

PRACTICE and PROCEDURE — Court of Appeal — adjournment — corporate appellant unrepresented on return of appeal — necessity of legal representation of corporations — fourth application of proceedings — expiry of earlier stay of orders requiring possession of premises to be delivered with keys — necessity to seek further stay and orders — absence of grounds for doing so — necessity of fairness to respondent — absence of apparent merits in appeal — held: Application for further adjournment dismissed. Appeal dismissed with costs.

Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 (CA) applied.

Kirby P Before the Court for the fourth time is an appeal by two companies, Mildwing Pty Ltd (Mildwing) and Swanelm Pty Ltd (Swanelm). The companies appeal against orders made by Windeyer J on 9 September 1992. His Honour's orders were entered on 17 November 1992.

His Honour ordered that:

1 A summons which had been heard by him be dismissed;

2 The two companies pay the costs of the defendant, Corpcode No (7) Pty Ltd, the respondent to the appeal;

3 Relevantly, that an injunction which had been granted in support of such summons on 3 September 1992 be immediately discharged; and

4 The keys of the premises constituted by shop 1, 17 Elizabeth Bay Road, Elizabeth Bay, which is being occupied by the second appellant company, be returned to the respondent.

The case came before this Court with expedition on 10 September 1992. The appellants were not then ready to proceed. The Court adjourned the appeal until 11 September 1992. On that day also the appellants were not in a position to proceed. The matter was again stood over to be heard on 3 November 1992. On that day, the Court provided further relief. It stood the proceedings over until today for hearing. It was made plain to Mrs Boscolo, then a principal of Swanelm, who was allowed to speak for it, that it would be necessary for the matter to proceed to finality on today's date. It was also made plain that it would be necessary for the companies to be represented before the Court by a legal practitioner.