PANGAS v NEWJUR PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY P 17 June 1996 [1996] NSWCA 419 Mahoney P. This matter comes before the Court as part of a series of litigious proceedings which, I think I am permitted to know, apparently commenced as far back as 1979 and are still proceeding. The costs of the applications must no doubt have been extraordinarily large having regard to the length of time involved; but that is not a matter upon which I need express any opinion. Application has been brought to this Court today in relation to two matters. Firstly, an application has been made that the claimants be granted leave to adduce fresh evidence in the appeal proceedings, evidence additional to the evidence given in the Court below. There is an appeal pending in relation to an order made by Mr Justice Bryson and it is sought on the hearing of that appeal to adduce fresh evidence. The rules and the practice contemplate that the appropriate documentation having been filed prior to that time, applications for leave to adduce fresh evidence should be made at the time of the hearing. It is difficult to understand why the present application has been brought. It has been said that it was brought because of orders made by Mr Justice Sheller in November last. Perusal of those orders does notindicate that his Honour made any order which would warrant such an application. It is said, however, that something was said by his Honour orally which has not been carried into the orders which have been set forth in the Court papers. However that be, it is clear that the application for leave to adduce fresh evidence is not to be dealt with by me today. It will be dealt with by the Court on the hearing of the appeal. I so direct. The second application which is before the Court relates (I put the matter generally) to a sale which apparently is proposed to be effected of the property which is here in question. On 29 November 1995 Mr Justice Sheller made orders by way of stay of the orders made by Mr Justice Bryson on 22 November 1995. The property which is the subject of dispute between the parties, that situated at 15 Hunter Street, Sydney, is proposed to be sold. I say proposed to be sold in the sense that there is, I am told, an outstanding option for purchase of the property by a third party and the sale in question is by the exercise of that option. I shall treat that sale as being proposed to be made but only in the sense to which reference has been made. It was desired to ensure that the orders that were made by Mr Justice Sheller will not stop that sale taking place and also that there be an appropriate analogous security over the proceeds of the sale of that property. When I have referred to proceeds of sale, I mean of course the net proceeds of sale after account has been taken of the proper outgoings and deductions. When the matter came before me this morning I indicated that I would be disposed to make an appropriate stay and, as I understand it, the parties raised no objection to that course but invited orders to that effect. The parties went away 2 UNREPORTED JUDGMENTS to draft orders and, subject to what I shall say, orders have been drafted. I shall initial the documents in question and shall place them with the papers. Those documents provide, in their terms, an application for expedition of the appeal. That matter will go before the expedition judge. They also refer to the sale of the relevant property, namely 15 Hunter Street. There is a complication arising in relation to the drafting of what I think are the clear intentions of the parties, at least the clear intent of this Court in relation to that matter. The problem is that the property, 15 Hunter Street Sydney, is to be sold in conjunction with, and apparently under a single contract of sale with another and adjacent property. The purchase price appears to comprehend both of the properties. I am not purporting to deal with all of the details of the sale or all of the matters before me; I am directing attention only to the matters which are here relevant. The parties have, in par 2 of the orders which I am asked to make, referred to the proceeds of the sale and an endeavour has been made in the draft so to segregate the proceeds so that only the net proceeds of the property at 15 Hunter Street Sydney are dealt with in the terms of this order. That is the intention of the parties. Apparently verbal formulae to make that sufficiently clear to each of the parties could not be agreed upon. Reference was made in par 5 of the draft minutes to the consideration of the sale which it was intended should remain the subject of orders as in par 2 but the parties were not in agreement as to the precise terms of the description of the proceeds of sale which should be adopted. Following further discussion, the parties have made clear to the Court that the amount which is in question and which is to be held in trust as set forth in clause 2, is one half of the amount of $3.4 million referred to in clause 5, that is $1.7 million. It is intended that $1.7 million be the sum to be held in trust in accordance with clause 2 of the document which I have initialled and will place with the papers. I note that that is the intention. I note that in the document, reference is made to '18.18 per cent of the completed development referred to in the said agreement'. An endeavour was made apparently in clause 5 to include in the amount to be held in trust an amount by reference to that percentage figure. However, the Court is informed that nothing willbe received in relation to that item, at least will not be received at a time which is irrelevant. Therefore the amount to be paid into the trust account is to be confined to the $1.7 million to which I have referred and which is one half of the $3.4 million referred to in clause 5 of the document. A third matter that has been the subject of discussion is the possibility of a sale by the sheriff. I am told that orders were made by Mr Justice Young providing in effect that the sheriff should not proceed with any sale or attempted sale of relevant assets unless there be an application on motion for that purpose. It is desired by the parties that it be clear that, whatever their rights be in relation to those matters, they are not affected by what they have agreed to today. It is proper that that be noted. Reference is made in clause 5(b) to the possibility of a sale by the sheriff but, as I understand the intention of the parties, it is that the rights which they presently have in relation to that matter be not qualified or varied in any way by what is done today. Upon that basis, I will make the orders set forth in the document which I have initialled subject to the variations to which I have referred in my judgment and which I hope I have made abundantly clear. The only matter that I think is outstanding is the costs of the motions and they are provided for in clause 4. URJ PANGAS v NEWJUR PTY LIMITED (Mahoney P) Orders accordingly.