ASH STREET PROPERTIES PTY LIMITED v POLLNOW [1995] NSWCA 25

ASH STREET PROPERTIES PTY LIMITED v POLLNOW SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 1 September 1995

[1995] NSWCA 25

Handley JA. This is a notice of motion filed on 16 March 1995 on behalf of Errol Pollnow which seeks orders staying execution on three certificates of taxation and setting them aside. Execution on the certificates has been stayed. The original proceedings in the Equity Division were decided by McLelland J on 31 July 1985. The opponents appealed to this Court which on 18 July 1987 allowed the appeal and ordered the claimant to pay the opponents" costs of the appeal and of the proceedings in the Division. The claimant sought special leave but this was refused on 11 December 1987.

As a result the opponents were entitled to tax their costs of the proceedings in the Division and this Court. No steps were taken to tax those costs until 9 June 1992 when the opponents" bill of costs was filed in this Court. The following day their bill of costs was filed in the Division. The filing of these bills provoked an application by the claimant to this Court for a permanent stay of the taxations. This motion was dismissed by me on 26 October 1992 for reasons then given and the claimant wasordered to pay three-quarters of the opponents" costs of the motion. The opponents filed their bill of costs pursuant to this order on 25 November 1992. The taxation of the three bills took place before Registrar Howe on 20 September 1994 and the certificates of taxation issued on 12 October.

In the meantime the ASC had taken action under s 574 of the Corporations Law in respect of two of the opponents, Rosalind Gardens Pty Limited and Lake Village Apartments Pty Limited. On 27 February 1992 Rosalind was dissolved pursuant to that section and under s 576 its property vested by operation of law in the ASC. On 10 July 1992 Lake Village Apartments Pty Limited was also dissolved under s 574 and its property vested in the ASC.