CASTLEREAGH STUD PTY LTD v HOOPER [1994] NSWCA 42

CASTLEREAGH STUD PTY LTD v HOOPER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 26 August 1994

[1994] NSWCA 42

Priestley JA Some motions have come before the Court concerning an appeal by Castlereagh Stud Pty Ltd against a judgment in favour of Mr Hooper and S J Hooper Pty Ltd pronounced by Judge Phelan of the District Court late in 1992. The appeal books have been filed by the appellant and there is no obstacle, apart from the number of cases awaiting hearing, to the matter being placed in the list for hearing.

Shortly after the judgment was given in the District Court, the judgment creditors sought to execute on the judgment. This led to an application to this Court for a stay of execution on the District Court judgment pending the hearing of the appeal upon the provision of security for the District Court judgment. That security was provided by way of a banker's undertaking, given by Westpac Banking Corporation to the judgment creditors at the request not of the judgment debtor but of another company, of which there is evidence of connection with the judgment debtor by way of Mr Bridge, who is concerned with both companies.

Quite recently the judgment debtor became aware that it had been deregistered. The respondents to the appeal also became aware of this and sought to have the appeal struck out on the basis that there was no longer any appellant. Since then and very recently an application for reregistration of the appellant has been granted. That led to what was initially the application for the appeal to be struck out to become an application for security for costs of the appeal and for expedition.

Evidence before the Court shows quite plainly that the appellant is unable to pay its debts as they fall due at the present time. When I say that appears "quite plainly", the evidence which was before the Court on Monday led me to infer that was the position of the company. An adjournment was sought by the representative of the appellant then before the Court for an opportunity to consider whether evidence should be placed before the Court concerning the company's present position. The matter was then stood over until today. No evidence was put before the Court. I, therefore, feel safe in the conclusion that the company is unable to pay its debts at the present time.