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. Mr Archibald, who has appeared today for the appellant company, put a number of considerations why security should not be ordered. There were two of those which have some weight. One was that although in January and February 1993 the company was in a position, when providing security for the stay it then obtained, of having to get support of another company, which was an indication at that time that there could well be some financial difficulty so far as the appellant was concerned, this present application was not made until within the last two weeks or so. The explanation for that is that it was only then that Mr Hooper and his company became aware of the deregistration situation, but that is not a complete answer to the question: Why was not security for the costs of the appeal sought at the time when security for the judgment in the District Court 2 UNREPORTED JUDGMENTS was obtained? I would, therefore, have been inclined to restrict any security to security for costs from today to the end of the appeal. Although there was before me an estimate of the costs of the appeal so far as the respondents are concerned in the vicinity of $27,000, that estimate is, in my opinion, quite unrealistic. The nature of the appeal is one which, in my view, is likely to lead to the appeal being dealt with quite quickly. This is because, so far as I can see, all the grounds of appeal relate to questions of fact about which there was conflicting evidence before the District Court Judge, in the decision of which he was influenced by the demeanour of the witnesses and the absence of any objective documentation concerning at least most of the issues. I would have been prepared to order security in the sum of $10,000, being my view of a realistic amount to predict as the costs of the respondents from today forward. However, Mr Hooper indicated that he was not asking for a stay of the hearing of the appeal pending the provision of the security. He was aware that I have it in mind to grant expedition of the appeal. It seems to me that this case is one where a very rapid expedition is desirable. He, therefore, asked simultaneously for security and for the appeal to go forward in the absence of a stay. When I pointed out to him that such an order would probably be ineffective, he suggested a procedure which quite possibly could have been followed, by which I would have stayed the proceedings for a time to see whether security was provided and, if it was not, the Court would then have considered whether the appeal should be struck out. The problem with this procedure, or one of the problems with this procedure, would be the further delay that would inevitably occur before the hearing of the appeal. When told of the amount of security that I had in mind and the consequences of following the procedure he suggested, Mr Hooper, in my opinion very sensibly, decided that the best thing for him and his company was to have the earliest possible hearing of the appeal, and did not pursue the question of security. Thus the only order I make today is that the appeal be expedited. I have consulted with the Registrar of the Court and also with the Judge in charge of the Expedition List and, after discussion with the parties here today, I fix 16 September 1994 as the date for hearing of this matter. I have it in mind that it should be finished within the day and probably well within the day. Both sides, in preparing for the appeal, should bear in mind what I have said about the nature of the appeal. I also direct that written submissions be filed by the appellant no later than 5 September 1994 and that submissions on behalf of the respondents be filed no later than 9 September 1994. I think the costs of the various motions before the Court should be the respondent's costs in the appeal.