RYLEGROVE PTY LIMITED v FATIMI PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SHELLER JA 5 September 1995 [1995] NSWCA 409 Sheller JA. This is an application by notice of motion by Rylegrove Pty Limited, the appellant in an appeal that has been brought to this Court, for a stay of judgments and orders made by Young J and Master Macready on various dates that are set out in the notice of motion. The matter, together with other applications, were listed before a single judge of the Court in the motions list on 4 September 1995. They came before me on that day as the judge sitting to hear the single judge motions. It was indicated to me that the resolution of these various applications would take an amount of time, which made them unsuitable to be dealt with in the Monday motions list. Accordingly, sensibly as it seemed to me, the parties agreed that the matters be stood out of the list so that a special date could be set for hearing them. What has occurred today would suggest to me that the estimates made by those representing the parties that the matters were not suitable in terms of its length for hearing on a Monday, were well justified. The particular motion seeking a stay was brought back before me at short notice today when it emerged that a summons for the winding up of Rylegrove was before the Master today and that it was proposed that it proceed to hearing. As far as I can recollect it, no mention was made to me of that yesterday in Court. It obviously made the stay application a matter of great urgency. I should note that I regard it as entirely unsatisfactory that my attention was not drawn to the fact that one party to the matter yesterday intended to proceed on that summons today. In the result I sat at 2 o'clock today to hear the application by Rylegrove for a stay of the various judgments and orders to which I have referred. In support of the application a considerable amount of material was placed before me by way of affidavits. The respondent/opponent, Fatimi Pty Limited, tendered other material. I indicated to the parties that I was only concerned with making such order, if any, as was appropriate to preserve the situation until such time as the applications before the Court could come before it in an ordered manner and be dealt with as part of the Court's business. It was quite apparent after evidentiary material had been placed before me, which took over an hour, that it would not be possible for me carefully to assimilate all this material before making a decision this afternoon to deal with the interim situation. There are a variety of allegations which have been put before me by counsel and which will be recorded in the transcript which has been taken. The appellant asserts that it has grounds for making an application to the Court based upon allegations that one or other or both of the judgments to which I have referred were obtained by fraud and that there is further evidence whichthe appellant wishes to put before the Court under the provisions of s 75A of the Supreme Court Act 1970. It is also apparent from material placed before me by the opponent that quite separate from the winding up proceedings there are 2 UNREPORTED JUDGMENTS proceedings flowing from an alleged breach by the appellant of a Mareva injunction which was granted in 1993. I do not think it necessary for me to pass upon the significance or rights and wrongs of these allegations. At the end of the day, the plaintiff's claim has been heard at length by the Master and then again on review or appeal by Young J. In both those proceedings the appellant failed. The amount of the principal judgment was $69,000. The amount of interest thereon brought the judgment up to $133,000. I am told that the matter in issue was quite simply whether or not the appellant company was the debtor in respect of work that was alleged to have been done or whether it was some other person or company. The judgments appealed against were given in 1994. This application for stay before me comes one year later. As far as I can discern from the material, an application for a stay had already been made in this Court before Clarke JA and refused. I am told that apart from the respondent, there is another creditor which has appeared on the summons for winding up before the Master. It seems to me that if a stay is granted the respondent stands unprotected in terms of either the judgment that it has obtained or the costs of the appeal, if the appeal should fail. Therefore, it seems to me entirely reasonable that if a stay is to be granted the appellant should arrange for security in the form of a bank guarantee in a substantial amount to be provided as a condition of the grant of that stay. That would have the effect that the respondent was at least to a substantial degree protected if the appeal fails. At the same time the appellant is protected fromhaving paid the amount of the judgment to a company which apparently was dissolved and then revived for the purpose of running these proceedings. I have been informed by Mr Fitzgibbon, who appeared for Rylegrove, that no security is forthcoming. In the circumstances, bearing in mind all that has been put to me, I am not satisfied that the case for a stay has been made out. Accordingly, I dismiss the application with costs. The exhibits may be returned. Orders accordingly.