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. The principles which restrain this Court from interfering in the exercise of a judicial discretion are well known. Those principles apply with even greater force in a matter of this kind which involves practice and procedure than it does in other areas of discretionary decision making. The exercise of discretion was attacked upon three grounds. However, the Court is of the view that this case is not an appropriate vehicle to test the proposition that the discretion miscarried. If there were any matter which would warrant consideration of the issue on appeal it would be the view which his Honour took, which was suggested to be too narrow, concerning the consideration of cross-claims which the claimant asserted against the opponent. 2 UNREPORTED JUDGMENTS That is a matter which may at some future time require the attention of the Court. However, having regard to the way in which his Honour's judgment is expressed and its purpose in resolving the dispute between the parties, the Court is not of the view that this is an appropriate vehicle to bring the matter up. The summons for leave to appeal must therefore be dismissed with costs. Accordingly, it is not necessary for the Court to consider the motion of the claimant which sought an extension of time. Nor is it now appropriate to make any special order as to the costs of the appeal. Summons dismissed with costs. Counsel for the Claimant: Mr Kaye Solicitors: Harris and Co Counsel for the Opponent: Mr Tzovaras (solicitor) Solicitors: Tzoraras and Co