SON HOU ENTERPRISES PTY LTD and ANOR v BANK OF CHINA and ANOR [1994] NSWCA 290

SON HOU ENTERPRISES PTY LTD v BANK OF CHINA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 22 August 1994

[1994] NSWCA 290

Priestley JA The matter presently for decision is what cost order should be made upon a summons for leave to appeal which was filed on 22 July 1994 for hearing on 25 July 1994. The reasons for the summons being filed and for the matter being listed to come on urgently arose from the nature of the proceedings which had began before Santow J when an application was made by a mortgagor for ex parse relief against the mortgagee. The question arose in proceedings before Santow J as to what interlocutory orders should be made to hold the position between the parties pending the resolution of the claim for an injunction.

The mortgagor has submitted that in the circumstances it was necessary for it to file the summons for leave to appeal as part of its wish to preserve its position in regard to what orders should be made during the interlocutory period. As it happened before the summons for leave to appeal was disposed of the parties came to an agreement about appropriate orders for dealing with the period between the making of the orders and the hearing of the main proceedings. That made decision of the question raised by the summons for leave to appeal unnecessary.

The mortgagor has submitted that it was necessary for it to file a summons for leave to appeal and that the result of the arrangements eventually made before Santow J and the orders that he made in accordance with those directions gave the mortgagor basically what it had been seeking by way of the summons for leave to appeal. Therefore, it is said that the mortgagor should have the cost of the summons for leave to appeal.

On the other hand the mortgagee says that no order is being made in the mortgagor's favour under the summons for leave, the order that the Court should make should be simply summons dismissed with costs.