ARNOYA HOLDINGS PTY LIMITED v METWAY LEASING LIMITED [1996] NSWCA 23

ARNOYA HOLDINGS PTY LIMITED v METWAY LEASING LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA

18 March 1996

[1996] NSWCA 23

Priestley JA. This is an application by an appellant to add grounds of appeal to an existing Notice of Appeal which was filed within time, as I gather, after orders were made by Barr AJ on 26 April 1995. That would mean that the Notice of Appeal would have been filed some time before the end of May 1994. The application before me to add further grounds of appeal is dated 5 March 1996 and was filed on 6 March 1996.

Some of the history of proceedings leading up to the orders and declarations made by Barr AJ was set out by Sheller JA in reasons given on 17 July 1995 when he refused to order security for costs applied for by the respondent to the appeal. In the same interlocutory proceedings he refused to grant a stay of execution of the declarations and orders made by Barr AJ. I will not repeat the history of the matter as set out by Sheller JA although I have taken it into account in forming the conclusions I have formed in this matter today.

I will repeat one paragraph from his reasons, however, towards the end of them, where he said he was satisfied that the appellants had not madea case for an extension of the stay which they had had until that time. He said:

Mr and Mrs Campbell's evidence demonstrates that, leaving aside the amount of this judgment and other contested claims made upon them, their liabilities exceed the sworn value of their assets. Their financial situation is such that the enforcement of the orders would not add in any significant manner to their difficulties in prosecuting the appeal. In answer to a claim for a relatively small debt, which initially they acknowledged, they have taken active steps to delay matters by raising defences which either had no merit or which were not prosecuted. I do not regard their appeal as having any real chance of success. I see no reason why the opponent should further be delayed from enjoying the fruits of its victory, such as they are.