CLASSIC CERAMIC IMPORTERS v CERAMICA ANTIGA SA [1994] NSWCA 52

CLASSIC CERAMIC IMPORTERS v CERAMICA ANTIGA SA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and PRIESTLEY JJA 5 July 1994, 5 July 1994 [1994] NSWCA 52

PRACTICE and PROCEDURE — Court of Appeal — leave to appeal — company liquidation — whether certain cross-claims may be taken into account in determining corporate solvency — suggested special position of foreign company in relation to security for costs — challenge to exercise of discretion by primary judge — no challenge to principles stated — held: (Dismissing summons for leave to appeal) The Court would not disturb the exercise of the judge's discretion. It would not grant leave to appeal, notwithstanding the willingness of the appellant to bring into court the amount in dispute.

CORPORATIONS — insolvency — foreign corporation claimant — security for costs — principles to be applied — summons for leave to appeal from orders of Young J refused.

Kirby P (1), MAHONEY (1) AND PRIESTLEY (1) JJA. This is an application for leave to appeal from orders of Young J.

The matter was originally before the Court differently constituted a week ago. It was stood over until yesterday. But then again until today. This course was adopted as a result of a suggestion made, when the summons was heard earlier, that a matter possibly relevant to the determination of the summons was whether the claimant would bring into Court the amount at stake in the dispute between the parties to abide the outcome of an appeal, if leave were granted. The claimant sought an order, if leave were granted, that the opponent, a foreign company, should give security for the costs of the appeal so that if the appeal were allowed, the claimant would be able to recover its costs from the opponent, without difficulty.

The Court has heard full argument. It has the benefit of the transcript of the earlier argument and of written submissions from the claimant. A substantial question was argued before Young J. However, that question was determined in a way which is not now under challenge. All that is under challenge is his Honour's exercise of discretion.