PERI BAY PTY LIMITED v CHANNON REFRIGERATION PTY LIMITED [1993] NSWCA 208

PERI BAY PTY LIMITED v CHANNON REFRIGERATION PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 19 July 1993

[1993] NSWCA 208

Sheller JA. Peri Bay Pty Limited applies by notice of motion for a stay of a judgment given by his Honour Judge Herron QC on 19 February 1993 in proceedings commenced by the opponent, Channon Refrigeration Pty Limited. The application came on for hearing before me on 19 July 1993 when I dismissed it with costs and said that I would deliver my reasons in due course.

The applicant relied upon an affidavit by a solicitor, Michael Simone, of 7 June 1993. This shows that on 19 February 1993 Judge Herron gave judgment against the applicant in the sum of $38,515.12. On 19 March 1993 he awarded costs on an indemnity basis against the applicant. The applicant has appealed against the whole of these decisions. On 27 May 1993 Judge Herron refused an application for a stay. The opponent has now served a notice under s 460 of the Corporations Act 1989 (Cw'th).

In his judgment of 19 February 1993 his Honour outlined some of the background of the proceedings. The opponent sued the claimantfor goods and services supplied in 1986 and perhaps 1987. The statement of claim in the District Court was dated 14 June 1989. A sworn defence was filed on 14 June 1990. The defence, certainly as advanced before Judge Herron, was that the opponent used second-hand instead of new material as agreed, did not complete the work within thirty-five days of quotation as agreed and as part of the work and material supplied an icemaker which was unusable. The issues had apparently been referred to arbitration and came back for re-hearing before the Court following an award in favour of the opponent.

The reference back had earlier come before his Honour Judge Smythe QC who struck out some defences in the claimant's defence and adjourned the matter for hearing on 18 February 1993. When it then came on before Judge Herron the claimant applied for and was refused an adjournment. His Honour said he would meet any problems so far as was practicable which might arise so far as the defendant's having difficulties in conducting its case was concerned. Apparently some latitude was given to the claimant during the hearing as to the evidence which it was allowed to give. The principal witness for the plaintiff was Mr Channon, whose evidence Judge Herron accepted and for the claimant, Mr Oliveri. His Honour said: