RADLEY INVESTMENT COMPANY PTY LTD v AMQUE CLOTHING PTY LTD [1993] NSWCA 222

RADLEY INVESTMENT COMPANY PTY LTD v AMQUE CLOTHING PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 27 August 1993

[1993] NSWCA 222

Handley JA. Mr Segal, pursuant to liberty to apply reserved by the President on 5 July, has sought the prolongation of a stay of proceedings on the judgment entered by Judge Garling in favour of the first respondent for some $28,000 and costs. The President ordered that moneys be paid into court, or equivalent security be provided, within six weeks of that day and gave liberty to apply and ordered that if the sum was not paid, or appropriate security provided, within that time, that the proceedings be returned to the court for further order.

Pursuant to that direction the matter came before me on Monday 23 August. At that stage the position adopted by the claimant/appellant was that no security of any kind was being offered as the price of, or as a condition of, a further stay.

As a result of a question from me, Mr Segal indicated that further security in the form of a guarantee by Kabale Holdings Pty Ltd could be offered. There was at that stage no evidence as to the assets or liabilities of Kabale Holdings Pty Ltd and Mr Segal was not then formally instructed bythat company. In those circumstances I thought the appropriate course was to adjourn the matter until today and I directed that a further affidavit be filed and served on behalf of the claimants by 12 noon Tuesday 24 August 1993.

When the matter was before me this morning, the deponent of that affidavit, Mr Dalley, was cross-examined by Mr Brereton and some additional documentary evidence was tendered by him.

It seems evident that the appellants are in no position, on the material before me, to provide any further or other security for the protection of the opponents in respect of the judgment debt apart from the guarantee by Kabale Holdings Pty Ltd Nevertheless to some extent the position of the opponents/respondents will be improved by the giving of that guarantee. I propose to order that it be given.