TYREE v CHALLENGE FINANCE LIMITED [1992] NSWCA 256

TYREE vy CHALLENGE FINANCE LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and SHELLER JA 17 August 1992

[1992] NSWCA 256

Clarke JA. This is an application by an appellant for orders discharging a judgment given by Mr Justice Priestley on 31 July 1992 whereby his Honour refused to grant a stay of a judgment given by Mr Justice Rolfe on 10 April 1992 and refused to grant leave to the appellant to amend the defence on which he had relied in the proceedings in the Commercial Division.

The claim which had initially been made by the respondent was for moneys due under a guarantee. That claim was defended upon one basis which was in effect that the guarantee had been entered into upon terms that it would only be called upon in specific circumstances and these circumstances had not occurred.

Mr Justice Rolfe rejected that defence and granted leave to the respondent to enter judgment against the appellant for the amount claimed. Since Mr Justice Rolfe granted leave to enter judgment the respondent has served a bankruptcy notice upon the appellant and we have been informed that that bankruptcy notice was not extendedbeyond last Monday and on Tuesday of last week Mr Justice Einfeld in the Federal Court refused to set the bankruptcy notice aside.

Accordingly, the position is that the appellant has committed an act of bankruptcy. His sole reason for seeking a reversal of Mr Justice Priestley's judgment is that his Honour, although considering the matter prior to the commission of the act of bankruptcy, wrongly declined to grant a stay when it was clear that if one was not granted the act of bankruptcy would become complete.

Whether one looks at the matter that way or from another viewpoint which was pressed upon the court by the appellant today, and that is that unless a stay is granted he may not be able to prosecute his appeal, it seems to me that the application should be dismissed.