COLLINGS CONSTRUCTION CO PTY LTD and ANOR v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION [1997] NSWCA 69

COLLINGS CONSTRUCTION CO PTY LTD and ANOR v AUSTRALIAN COMPETITION & CONSUMER COMMISSION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P 14 April 1997

[1997] NSWCA 69

Mason P Following a hearing that went for about 50 days Hunter J announced in December last that he was minded to make orders in favour of the Australian Competition and Consumer Commission against various companies and persons, two of whom were the claimants today, Collings Construction Co Pty Ltd and Wayne Collings. Formal orders were made on 7 February 1997.

As against each of the claimants there was a finding that they were liable, pursuant to the Trade Practices Act, to pay to the Commission, on behalf of various persons (presumably consumers) listed in the order, the sum of $1.4,000,000.

An affidavit was filed, sworn on 12 December by Mr Collings. Obviously that related to a stay application then being prosecuted before Hunter J. It was there said that:

"The first defendant and I"

namely Mr Collings,

"intend to appeal from the decision and we have instructed our solicitors herein to file a notice of appeal within the period of time provided by the rules of this honourable Court."

Although a notice of appeal was filed, it was not filed until 7 March and then it was a notice not disclosing any grounds. That certainly was the right of the appellants, but it is a matter that I think is relevant to be taken into account in the exercise of my discretion concerning the grant or refusal of a stay.

For reasons given on 5 February 1997 in a document called "Supplementary Reasons for Judgment", Hunter J indicated why he was disposed to grant a limited conditional stay in favour of the Collings group, by which he meant Collings Construction Co Pty Ltd and Mr Collings. I will not set out his reasons on that matter, but I do note that his Honour expressed the opinion that an unconditional stay was not appropriate.