MURA v MERCAP PTY LTD and ANOR [1994] NSWCA 212

MURA v MERCAP PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 16 May 1994

[1994] NSWCA 212

Handley JA There is before the Court a motion by the respondent seeking summary dismissal of the appeal or an order that the appellants provide security for the respondent's costs in the sum of $10,000 or such other amount as the Court might order.

The appeal is by the defendants from a decision of Windeyer J in the Equity Division given on 4 March 1994. There were before his Honour that day a motion by the plaintiff, the present respondent for the entry of judgment against the third and fourth defendants for $269,018.60 plus interest and cross-motions by the appellants seeking orders that the plaintiff's claim and the defendants' cross-claim be heard together, or that there be a stay of proceedings in respect of the plaintiff's claim, or that there be a stay of execution of any judgment in favour of the plaintiff until the defendants' cross claim could be determined. Windeyer J dismissed the defendants' cross motions.

In order to understand the proceedings before Windeyer J on 4 March it is necessary to bear in mind that on 5 October 1993 in the same proceedings, the Court had made an order by consent for specific performance of the contract between the parties for the allotment of shares including directions for the working out of that order. Then on 1 December 1993, Windeyer J heard and determined an application for a declaration of the validity of a valuation made in working out the order.

The order of Windeyer J appealed from which entered judgment for $329,939.71 inclusive of interest against the appellants is a further judgment given in the course of working out the original order for specific performance.

Mr Muddle, who appeared for the respondent, sought summary dismissal of the appeal on the ground that it was frivolous and vexatious. This application invoked the inherent jurisdiction of the Court and was not made pursuant to the rules.