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. A single judge cannot make an order dismissing an appeal on that ground. $46 of the Supreme Court Act requires such an application to be made to a Full Court. On the other hand, grounds 6 and 7 in the notice of appeal challenge the decisions made by Windeyer J on 4 March dismissing the appellants' cross motions. The orders dismissing those cross motions are clearly interlocutory and the appellants require the leave of this Court to appeal from those orders. See s101(2)(e) of the Supreme Court Act. If nothing more appeared, I would be disposed at this stage to order that grounds 6 and 7 be struck out without prejudice to any application which the appellants might be advised to make for leave to appeal. However, it occurred to me that on one possible view of the matter, the final judgment in these proceedings in the Equity Division was the consent order for specific performance made on 5 October 1993 and that all subsequent orders 2 UNREPORTED JUDGMENTS made in the Division in working out that order are interlocutory. The Court is entitled to raise such a point of its own motion. Neither counsel came prepared to deal with this point and accordingly I will adjourn the further hearing of the respondent's motion for dismissal to Monday 6 June before a Full Court. I direct that the solicitors for the claimant file any additional copies of the documents required for the use of the Full Court. The opponents to the present motion may, if so advised, file a summons for leave to appeal returnable before the Full Court on Monday 6 June. The claimant also sought an order that $10,000 be provided as security for costs. Mr Aldridge, counsel for the opponents did not oppose an order for between $5,000 and $7,000. The Full Court may hold that the appeal is incompetent and the appellants may seek leave to appeal. The convenient course therefore is to refer this part of the motion to the Full Court as well. If the appeal is incompetent and leave is refused, the need for security will disappear. If the appeal is incompetent but leave is granted, the court would be in a position, if it saw fit, to impose a term that the appellants provide an appropriate amount as security for costs. If the appeal is competent without leave, the question of security will arise but in view of MrAldridge's concession, the Full Court will not be troubled for any appreciable time with that question. I order that the costs of today be costs in the motion. Orders accordingly