GAMBOTTO v GAWA PTY LIMITED (IN LIQUIDATION) FORMERLY KNOWN AS A & G FORMWORK [1995] NSWCA 163

GAMBOTTO v GAWA PTY LIMITED (IN LIQUIDATION) FORMERLY KNOWN AS A & G FORMWORK

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 28 March 1995

[1995] NSWCA 163

Handley JA. On 28 October 1994 Windeyer J gave reasons for judgment in the matters of A & G Formwork Contractors Pty Ltd (In Liquidation) v Gambotto & Anor and Napoli Constructions Pty Ltd v Gambotto & Anor. On 3 November he made final orders entering judgment for the plaintiff in the first proceedings for $2,238,976.13 and costs and for the plaintiff in the second proceedings for $255,145.40 and costs.

On 25 November the appellants appealed as of right and on 1 December they applied for a stay of those judgments and orders until their appeal was heard and determined. In the same notice of motion they sought orders releasing assets bound by earlier Mareva injunctions to enable them to fund the costs of their appeal. The motion came before Mahoney JA on 9 December when it was adjourned by consent to 20 February when it came before me.

After argument that day I indicated that I would not order the release of assets to enable the appellants to fund their appeal. Substantial funds for payment of legal costs had previously been released from Marevaemployment records, and the other evidence as to a system carried on with the knowledge of the respondents for the minimisation of workers" compensation insurance was irrelevant or peripheral.

3. His Honour erred in finding that the second appellant Ruth Gambotto had converted any moneys or property of the first and second respondents.

The third ground is not a ground of appeal at all as required by SCR Pt 51 r 8(1)(c). In any event the trial Judge noted that the retainer of the moneys sued for was not disputed by the defendants. The first ground challenges a discretionary decision of the trial Judge on the second day of the trial to refuse the defendants leave to amend. On any view the appellants face a heavy burden in challenging such an order but in the present case those difficulties are insurmountable. Windeyer J noted that the proposed amendments did not comply with the Court's rules as to pleading. This was no mere technicality because they sought to raise an allegation of conspiracy to defraud but failed to set out clearly the nature of the fraud.