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. It is sufficient to note that it has been accepted by Senior Counsel for the respondent to this application that in the event of it being found that there was a breach of s1002G, the provisions of s1002U are sufficiently wide to confer upon a Court the necessary powers to make such orders as may be necessary to redetermine the rights of the parties if they were affected by any agreement found to be in contravention of $1002G. For those reasons, in my opinion, the application for leave to appeal should be refused. Kirby P. I agree. Although I remain of the view expressed of dissent in Ramton v Cassin, the principles of that decision are now established jurisprudence of the Court They are regularly implied, although not inexorably. They should be applied here. 1. (Unreported) Court of Appeal, 25 September 1995. 2 UNREPORTED JUDGMENTS I will only add that I believe the Court should firmly reject the contention that leave should be granted to appeal from an order such as was in contention here because Young J failed to use the exact formula which is common in applications for the relief sought before his Honour. I would not draw the inference that his Honour failed to apply the proper test because of the absence of the well-known words of the formula. These words would be known as well, if not better, to his Honour than to this Court. I agree with the orders proposed. In my opinion the application should be dismissed. Clarke JA I agree with the substantial reasons given by Cole J. Kirby P: The order of the Court accordingly is summons for leave to appeal is dismissed. The claimant must pay the opponent's costs. COUNSEL: Claimant: AJL Bannon/V Kerr Opponent: TM Jucovic QC/F Gleeson/M Steele SOLICITORS: Claimant: Blake Dawson Waldron Opponent: Corrs Chambers Westgarth