TYMEZYSZYN PTY LTD and ANOR v MINERAL and CHEMICAL TRADERS PTY LTD [1994] NSWCA 325

TYMEZYSZYN PTY LTD v MINERAL and CHEMICAL TRADERS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 22 December 1994, 22 December 1994 [1994] NSWCA 325

PRACTICE & PROCEDURE — Proposed appeal — allegation of want of procedural fairness — where the parties agreed, and judge told, that only issue of principle to be settled by declaration judge makes final orders — ambiguous correspondence — held: Stay of execution upon terms — payment in part — establishment of fund controlled by solicitors.

Kirby J Before me today is an urgent application for relief against execution of certain orders which were made by Santow J. The orders were made pursuant to a judgment given by his Honour and published on 24 November 1994. Thereafter, following further argument, his Honour, on 15 December 1994, made a declaration and orders to give effect to the earlier published reasons.

The case is not without its complexity. However, the ultimate issues which, it is said, will be tendered in an intended appeal to this Court are:

(1) Whether the declaration of legal right which his Honour made is sustainable in law; and

(2) Whether, in the orders which his Honour made, he denied procedural fairness to the claimants.

In the nature of these proceedings I am not able (nor would it be right for me) to predetermine the two issues which will, in due course, come to the Court. However, it is appropriate that I should have been taken to those issues so that I could form a view concerning the arguability of the points that will be raised on appeal.

Put very shortly, and therefore with some inaccuracy, the claimant asserts that all that was asked of Santow J was that his Honour should determine a prayer for relief which would lead to a declaration. Instead of that, so it is said, his Honour has gone on to make orders which provide for the payments to the opponent of certain share sale proceeds and, in effect, requiring a credit to be allowed by the recipient of that payment (the opponent) for the surplus of the share proceeds after deduction of moneys found to be owing to the opponent.