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. The requirement for the companies to be represented by a legal practitioner is established by the Rules of this Court. The stringency of the requirement has been stated many times. See eg Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 (CA). It is a rule which must be observed by the Court. The fundamental rationale behind it is the necessity to ensure that companies, when they appear before a court, are properly represented and that the separate interests of companies as such are represented before the court and not confused with those of officers, employees, shareholders and other persons having some connection with the company. 2 UNREPORTED JUDGMENTS When the matter was called on this morning no legal practitioner appeared to represent Mildwing. Indeed that company has not been represented at all by anybody. Swanelm was also not represented by a legal practitioner. However, two persons - Ms M Boscolo and Mr R Barta - who claim to be directors of the latter company, rose to speak for it. The Court has not allowed them to represent the company. However, it has heard everything they have had to say in support of their application. It was, in effect, an application for a still further adjournment of the hearing of the appeal. It was said that Mr Sarroff, the solicitor formerly acting for Swanelm, had withdrawn because of a perceived conflict of interest and duty. They had then consulted another solicitor, Mr Mollenbeck. Mr Mollenbeck said, by reason of the complexity of the matter, that he would require at least two weeks to prepare and probably until after Christmas. He could not represent the company today. The result of this was therefore that neither Mildwing nor Swanelm were properly before the Court. However, Ms Boscolo, in particular, has put up an eloquent application for the adjournment of the proceedings. She has relied principally upon the fact that her mother, Mrs Sylvia Boscolo, formerly a principal of Swanelm Pty Ltd, is ill with acute bronchitis. She produced a certificate from Dr GF Parnos of Kingsford. That certificate was received by the Court without objection. It states that in the opinion of Dr Parnos, Mrs Sylvia Boscolo is "suffering from acute bronchitis" and "will be fit to resume work on 14 December 1992". The certificate bears yesterday's date. This certificate, and the statements of Ms Boscolo to the Court, do not really provide a proper basis for an application for adjournment of the appeal. I pass over the fact that Mildwing, which was the actual lessee in the dispute between the parties, is not represented at all. The Court was told that Mrs Boscolo has now resigned as a director of Swanelm. Therefore, her interest to give instructions on behalf of that company appears also to have come to an end. Accordingly, the fact that she is unwell is completely irrelevant to the legal issues before the Court. Furthermore, the certificate which was produced, on its face, is not really a certificate of an inability on the part of Mrs Boscolo in any way to attend the Court. It merely states that she will be fit for work on 14 December 1992. Even if one inferred from the terms of the certificate that, in some way, she was unfit to attend Court, that inference is, to some extent at least, contradicted by the statement of Ms Boscolo that, as recently as yesterday, Mrs Boscolo was engaged in the conduct of the real estate business of Swanelm. That business is in occupation of the premises at this stage without the benefit of any court order or other legal right. The stay which was formerly granted by the Court elapsed on 30 November 1992. There is thus no stay which now operates to relieve Swanelm of the effect of the orders of Windeyer J. His Honour's orders are, therefore, in force. The terms of the lease itself are in force. There is thus no proper basis upon which Swanelm is in occupation of the subject shop. Its obligation to return the keys of the premises in accordance with Windeyer J's order is undoubted. In order to have relief that would permit it to remain in occupation not only would Swanelm require an adjournment of the proceedings before this Court. It would require positive orders of the Court to relieve it of the consequences of the orders of Windeyer J. I see no basis upon which we could afford such relief. URJ MILDWING PTY LTD v CORPCODE No (7) PTY LTD (Handley J) 3 So far I have looked only at the circumstances of the application for adjournment. I have done so in more detail than otherwise I would out of deference to the vigorous and highly intelligent arguments of Ms Boscolo. I realise fully the disruption which relocation of Swanelm's business will cause. Ms Boscolo said everything that could have been said in support of the application. It is appropriate for the Court to take into account that, effectively, by dismissing the application for adjournment, the Court will be proceeding quickly thereafter to deal with the appeal. It will dismiss the appeal because there will then be no party before the Court to appear for the appellant companies or either of them. I would hesitate to take that course if, in the papers, there appeared to be some prospect that an arguable case could be presented to the Court by Swanelm or even by Mildwing which is completely absent. However, when I examine the arguments which I infer to be those that would be put before the Court by these companies, as derived from the reasons of Windeyer J and an examination of the respondent's written submissions - there being no written submissions before us today for the appellants - I am satisfied that there is absolutely no prospect of the appellants, or either of them, succeeding in the appeal. Having come to that view an extension of the agony of this litigation is not in the interests of the appellants nor of those who stand behind the appellants. The Court has four times provided for hearing of the appeal, three times in response to applications for adjournment. Today, as the Court previously indicated, is the end of that process of indulgences. The Court must be fair also to the respondent. It must protect the legal interests of the respondent. For these reasons and others which I will not trouble to detail, I am of the opinion that the application for adjournment must be dismissed. There being, then, no representation for either of the appellants before the Court I would propose that the appeal be dismissed. Necessarily, the appellants must pay the respondent's costs. Priestley J I agree. Handley J I agree. KIRBY P: The order of the Court is that the appeal is dismissed with costs. No appearance for the appellants. Counsel for the second appellant: Ms M Boscolo and Mr R Barta (directors) permitted to speak for second appellant, Swanelm Pty Ltd Counsel for the Respondent: VR Gray, Instructed by: Michael Dunkel and Co