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. Upon my indicating that an adjournment seemed to me to be reasonable, subject to conditions, counsel for the opponent respondent said his client expressed concern that assets might be dissipated by the claimant appellant during the course of any adjournment. This was a statement made from the bar table. Had there been contest about the terms upon which the adjournment would be granted, I would have been inclined to require evidence supporting the fears that had been expressed. However, sensibly this has not been necessary because a degree of agreement has been reached between the parties. 2 UNREPORTED JUDGMENTS The opponent respondent had indicated it would seek relief along the lines of the Mareva injunction and presented a draft order designed to implement such relief. The draft consists of three pages, the first of which contains undertakings by the respondent opponent and a draft order which runs ends on the first page. After discussion Mr Glissan obtained instructionsfrom his client to agree to such an order being made for the period between now and the date of the adjourned hearing of the application. Also after discussion the parties agree that next Wednesday would be a convenient date, although I should say Mr Glissan submitted that he would need longer to get all his evidence together. It seems to me, however, that in the circumstances the Court should limit the adjournment to one of a week and leave it to Mr Glissan and his client and his solicitors to get the evidence all together ready for hearing at 9.30 next Wednesday 21 February. On that basis I make the order on the first page of the three sheets that I have been handed. I note the undertakings given by the opponent respondent's counsel to the Court on behalf of his client and I also reserve liberty to the appellant to apply I would say on two days" notice to vary or discharge the order. I make that reservation simply in case some urgent business matter comes up during the period. It seems unlikely that it will happen during the week. I would also direct that the orders that I've made be entered forthwith and the Registrar settle the minute of the orders. Talso think that I should order that the costs of today be borne by Mr Glissan's client, the claimant appellant, in any event. UNDERWOOD: Your Honour, a direction in relation to service of affidavits by the claimant, I would suggest 5pm on Friday? We may have to put on some affidavit evidence in reply. PRIESTLEY JA: Yes I realise that. Trying to be realistic I seem to remember from Monday that there was some confusion about where some exhibits were and it may be that there will be some real difficulties in getting everything together. UNDERWOOD: Can I suggest it be a two-tiered program? There is no doubt that there is some material which Mr Glissan has on the bar table which could be provided to us in an informal form as soon as possible, even if it's not in affidavit form, such as financial information etcetera and/or acopy of the plan which he's referring to with a formal direction that all affidavit material be on by a certain period of time. PRIESTLEY JA: I think I can be a little more flexible than that. I would simply observe that any materials presently available to Mr Glissan's side should be made available to your side just as soon as practically possible. That affidavits to be used in the proceedings next Wednesday should be filed by 4pm on Monday and that your affidavits should be filed by 4pm on Tuesday. It is quite feasible it seems to me that material is going to turn up after Monday and I would indicate that I would not be inflexible about allowing later material to be tendered, but I would be critical if there is any sign of manoeuvring in that. UNDERWOOD: I understand, your Honour. PRIESTLEY JA: Do you follow that, Mr Glissan? GLISSAN: Yes I do. Your Honour, on the costs order, given the sensible position that we adopted in relation to the Mareva order and given also the fact that we didn't receive the opponent's affidavit material until the Friday before the hearing on Monday, would your Honour be disposed to make some kind of notation that the costs be removed to the time actually involved this morning, which should be no more than half an hour? URJ_ INED PTY LIMITED v PARTRIDGE PARTNERS PTY LIMITED (Priestley JA) 3 PRIESTLEY JA: I won't make any direction. I will make another observation. Everything is being taken down on the sound recording equipment and the facts that you have mentioned, Mr Glissan, will be available to the Taxing Officer or the Assessor if it ever comes to full taxation. UNDERWOOD: The claimant's affidavits were served the day before. That's why ours was served on the Friday, so it was all put together very quickly. PRIESTLEY JA: I will leave you to that. Do the orders that I have made and the observations that I have made cover everything that the parties want me to deal with? GLISSAN: Yes, your Honour. UNDERWOOD: Yes, your Honour. (Adjourned to 9.30am, Wednesday, 21 February 1996.) Orders accordingly.