Uncomposed text in Xyvision Standard Format Page 1 URJ UNREPORTED JUDGMENTSurj1996BC9600361nsw INED PTY LTD v PARTRIDGE PARTNERS PTY LTD INED PTY LTD v PARTRIDGE PARTNERS PTY LTD nswcaSUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Priestley JA40043 of 1996 21 February 1996, 22 February 199622021996 [1996] NSWCA 2621996nswca262INED PTY LIMITED v PARTRIDGE PARTNERS PTY LIMITED7/5/2002Converted from Infol Stay of judgment pending appeal — whether reason shown for granting — likelihood of success on appeal — whether Appellate Court likely to reverse trial judge's findings on credibility of witnesses. Appeal against judgment of District Court Judge Patten for Partridge partners Pty Ltd against Ined Pty Ltd for payment for fees for engineering services and interest. In 1992, Partridge Partners was a structural engineering company and Ined a builder and developer. The central persons in each company were Mr Partridge and Mr Taylor. At this time, a proposal was discussed by Mr Taylor with various industry related persons, for the construction of a hostel (Rocklands Hostel) and Mr Partridge expressed interest in his company becoming the structural engineer for the project. A company called Rocklands Hostel Pty Ltd was later incorporated, the principal persons being Mr Taylor and Mr Jenkinson, and it was their intention that this company would carry out the works and not Ined Pty Ltd. The single issue at trial was whether the contract for services pursuant to which the work that had been done for which the amount was claimed was Ined or Rocklands Hostel Pty Ltd. Judge Patten decided Ined was the contracting party. Partridge Partners served Ined with a creditor's statutory demand for payment of debt (pursuant to the corporations Law) which gave twenty-one days for compliance. Ined filed a summons in the Equity Division to have the statutory demand set aside. Ined filed a notice of appeal against the judgment seeking an injunction Uncomposed text in Xyvision Standard Format Page 2 against Partridge Partners enforcing the judgment until the appeal had been decided, effectively to operate as a stay of execution of the judgment. In Ined's application, it was submitted: nl. If no stay were granted there would be prejudice to Ined's application to set aside the statutory demand. n2. If the execution of the judgment debt proceeded, Ined would be forced into insolvency. n3. If the judgment debt was paid, and Ined succeeded in the appeal, Ined had reason to fear it would not recover the money paid over. In opposing the stay, Partridge Partners contended Ined had no prospect of succeeding in the appeal and was simply delaying. The primary question was what were Ined's prospects on appeal. Any prospect of success depended on the Court of Appeal's acceptance of evidence by Mr Taylor that he had told Partridge Partners that they were sending their documents to the wrong party. This was not accepted by Judge Patten, who accepted evidence by witnesses for Partridge Partners to the contrary. HELD: There would be no realistic prospect of a Court of Appeal interfering with the trial judge's decision, unless Ined could persuade the appeal court to change those findings of fact; in approaching this question the Court of Appeal must follow rules laid down over many years and reiterated none Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472 The present case fell squarely within those rules. The prospects of success on appeal were therefore so slight the application should be dismissed. On Partridge Partners' application, Mareva injunction granted until Ined's application to set aside statutory demand comes before Equity Division. ORDERS nl. Order that, upon Partridge Partners Pty Ltd causing to be delivered to the Court a guarantee executed by four of the five directors of Partridge Partners, that in the event of the payment by Ined to Partridge Partners of the judgment debt or any part thereof, the directors guarantee to Ined payment by Partridge Partners of that part of the judgment debt, and upon Partridge Partners undertaking to the Court by its counsel to have delivered to the Court no later than tomorrow a further document which will bear the signatures of all five directors of Partridge Partners, and upon the understanding that this is a joint and several guarantee by each of the five directors, the application be dismissed with costs. 2. Upon the respondent by its counsel giving the usual undertaking as to damages, and upon the respondent by its counsel undertaking to the Court to pay to any persons other than the appellant, or companies to whom or to which notice of the order