FUTURIS CORPORATION LTD and ANOR v EXICOM LTD [1995] NSWCA 159

FUTURIS CORPORATION LTD and ANOR v EXICOM LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and COLE JJA 30 October 1995, 30 October 1995

[1995] NSWCA 159

APPEAL — interlocutory decision agreement — allegedly in contravention of Corporations Law, s1002G — availability of corrective powers under s1002U

CORPORATIONS — insider trading

Held: Legal challenge should be heard after trial if still then relevant Held: Any challenge after trial. Ramton v Cassin, Court of Appeal (NSW), unreported, 25 September 1995 applied.

Kirby P I will ask Cole JA to give the first judgment.

Cole JA This is an application for leave to appeal from an interlocutory decision of Young J delivered on 24 October 1995. It is unnecessary to recite the circumstances in which that relief was sought.

The claim is based upon an asserted breach of s1002G of the Corporations Law. The final hearing of the matters in dispute between the parties is listed for 22 November, some days prior to the proposed holding of a shareholder's meeting of Exicom. It is preferable, in my view, to determine all of the issues in dispute between the parties at the final hearing. After that final hearing, if the parties be so advised, the issues now sought to be raised may be raised upon appeal. In adopting that course, the plaintiffs before this court are not deprived of any rights. It is consistent with the approach of the majority in Ramton v Cassin! that, save in exceptional circumstances, interlocutory orders of trial judges should stand, and questions of law which a dissatisfied party may wish to raise arising from such orders be reserved for hearing on the hearing of any appeal after a final hearing. In those circumstances, it seems to me to be appropriate not to express any views regarding the correctness or otherwise of the questions of law determined by Young J in the judgment in respect of which leave to appeal is sought.