INED PTY LIMITED v PARTRIDGE PARTNERS PTY LIMITED [1996] NSWCA 263

INED PTY LIMITED v PARTRIDGE PARTNERS PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 14 February 1996

[1996] NSWCA 263

Priestley JA. This matter was in the list this morning following argument on Monday upon an application by an appellant for a stay of the judgment appealed from until the appeal has been heard. For reasons I then indicated I did not think that the application for a stay was at all strong. There was a question left in the air on the evidence in the application as it then stood about the ability of the respondent to the appeal to repay the amount of the judgment if it obtained that amount before the appeal was heard and if the appeal were then successful. Neither party had put before the Court a statement of the assets and liabilities of the respondent. The respondent was content to rest upon its professional reputation and in addition offered an undertaking by each of its directors to be responsible for repayment of any amount that might have to be repaid as a result of the appeal if the judgment was satisfied prior to the hearing of the appeal. I stood the matter over till this morning to enable that undertaking to be put in proper form.

In the meantime it had occurred to me that probably some form of deed or guarantee would be a more satisfactory way of carrying out the intention that had been expressed by the respondent and its directors. Counsel for the respondent had anticipated what I had been thinking about toa considerable extent and produced documentation which went very close to meeting what I think would be the desirable requirements. It does need some amendment, however, in my opinion, and I think I would have had to stand over the matter for a short time to enable those amendments to be made.

On the other side of the record Mr Glissan for the claimant appellant this morning asked for an adjournment in order to put further evidence before the Court, some of which is available today, but some of which is not. He is hopeful that this further evidence may show that the prospects of his client on appeal are not as gloomy as they seemed to me to be on the materials that were before me on Monday. I think he should have an opportunity to put that further material before me, although in any event I think there should be a costs penalty for that material not having been before the Court when the matter came on for hearing in the first place.