HORROBIN v AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED [1996] NSWCA 252

HORROBIN vy AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P and PRIESTLEY JA 24 June 1996

[1996] NSWCA 252

Mahoney P. In this matter the Court is minded to grant leave to appeal against the order for summary Judgment. It will direct that the appeal be prepared as on the basis of a short appeal, that is, as a matter that ought to be dealt with within two hours. In the preparation of the appeal, detailed submissions should be prepared, on that basis.

It is minded that the costs of the application be costs of the appeal. The other orders that have been made are not of course the subject of the leave to appeal application, so the Court need not consider those further.

The Court is minded to grant a stay, but only upon conditions of the kind referred to in the letter from Norton Smith & Company dated 21 June 1996. That is a letter addressed to Messrs Heidtman & Company. It is minded to grant the stay upon those conditions mutatis mutandis. It has not had the benefit of any detailed summary of the financial condition of the — I call them — Horrobin interests, but it is minded to grant the stay. (The present stay extends until 1 July). It will allow the Horrobin interests leave to appeal for a variation of the terms of the stay by motion filed prior tothat time, otherwise the stay will be upon the conditions set out in the letter of 21 June 1996.

It is appreciated that the terms there set forth may require some elaboration, and it will therefore direct that the parties bring in short minutes that give effect to the substance of the orders which I have indicated. I indicate again that if the Horrobin interests contend that they are financially unable to meet the payment of the interest component, which I take to be $14,038.36 per fortnight, liberty is reserved to them to make an application for variation of the terms of the stay in that regard. Ordinarily an application would be necessary for them to establish to the Court's satisfaction that inability, and perhaps other discretionary matters, before any variation of the stay would be granted.