BALTIC SHIPPING CO v GEOFFREY PHILLIP MERCHANT and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 9 August 1993, 9 August 1993 [1993] NSWCA 19 Clarke JA The claimants, who are respondents to a number of appeals involving the Baltic Shipping Co, the opponent, have sought orders that the leave granted to the opponent to appeal from the judgment and orders of Mr Justice Carruthers be rescinded or alternatively other and perhaps less draconian orders made. The fundamental basis for the application is that leave was granted upon the basis that the amount of the judgment together with costs totalling in all $874,291 should be paid into court. There is a difficulty with this case insofar as the actual orders made when leave was granted do not suggest that leave was only granted upon terms that the amount be paid. There are, however, statements in the reasons of the court, which were given by the learned President, which could be thought to suggest that the court had intended that a sum of this order should be paid as a condition of the order actually made. However, I do not think it is necessary for this Court to concern itself with the possible ambiguity in the earlier reasons, for at the start of the proceedings today Mr Street, who appears for the opponent, indicated that the notice of appeal had not been filed in the matter until this morning. Insofar as leave was granted on 5 July it was incumbent upon the opponent to file its notice of appeal within fourteen days. This it did not do and it was therefore necessary for it to seek an extension of time in which to file its notice of appeal. It has sought that extension from the court today and after discussion concerning the prior history of the case it was suggested that the court would grant an extension of time provided the moneys referred to in the orders made on 5 July, less the sum of $15,000 which has already been paid into court, be paid or a bond provided. I do not think it necessary to go into matters of history for it is clear to me that the justice of the case requires that extension of time only be granted upon the basis that the verdict moneys are paid within a particular time. The question then is what is a reasonable time within which the amount should be paid. Mr Street, appearing for the opponent, submits the court should allow at least twenty-one days and points to the fact that the opponent is a Russian company and that there would be obvious difficulties in getting money into this country in a short time. Mr King on the other hand, who appears for the claimants, submits that this company purports to be an international company carrying out business in many parts of the world and that in the age of the fax there should be no problem in having the money brought into this country within seven days. It seems to me that the orders which the court should make are as follows: (1) An extension of time granted for the opponent to file the notice of appeal until 5 pm today upon terms that the sum of $810,000 is paid, or provision by the opponent of an irrevocable bond with an Australian bank guaranteeing payment of that sum is provided on or before 5 pm on Thursday 19 August 1993. 2 UNREPORTED JUDGMENTS (2) In the event that the said sum is not paid nor an appropriate bond provided within that time, leave is granted to the claimants to move on twenty-four hours notice for an order that the appeal be struck out. Meagher JA I agree. Handley JA I agree. King: I seek the costs of this application today. Street: The area on which my friend has succeeded is much narrower than the grounds on which he sought to do it. In my submission it would be an inappropriate to make an order for costs. I submit that would be appropriate is for the claimants' costs to be the respondents' costs in the appeal or vice versa otherwise I submit it would be inappropriate to make an order. King: I simply say that the matters that we wished to agitate today are really the same matters that the court took into account in exercising the discretion to make the extension of leave a conditional one and it doesn't really matter whether one arrives at that result through the application we took or making the condition an extension of leave. Handley JA: The problem is that when the old orders were pronounced if the court's attention had been drawn to the ambiguity and the ambiguity had been clarified in your client's favour, then this application would have been unnecessary. King: I agree. I think I drew your Honours' attention to that in my written submissions. In response, it was the common understanding of both parties until Mr Justice Mahoney drew the parties' attention to the fact that that understanding was incorrect, that the grant of leave was conditional and although my friend says that is not correct, why else would they pay the security of $15,000 into court when no security for costs had been ordered? It is on that basis that we seek the costs of this application in any event. Clarke JA: The order we make is that the claimants', who are the respondents in the appeal, costs today will be their costs in the appeal.