ABIGROUP LTD v SANDTARA PTY LTD; ABIGNANO v ABIGROUP LTD; WENKART v PITMAN [1997] NSWCA 6

ABIGROUP LTD v SANDTARA PTY LTD; ABIGNANO v ABIGROUP LTD; WENKART v PITMAN

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, SHELLER JA and COLE JA 17 December 1997

[1997] NSWCA 6

Priestley JA, Sheller JA and Cole JA. The three above matters were listed for hearing before Priestley and Sheller JJA on 27 November 1997. In fact matter No. 40673/97 (Wenkart v Pitman) did not proceed, there being no appearance for either party in circumstances to which we will refer. Priestley and Sheller JJA heard argument in the two other matters. At the conclusion of the argument the Court raised the question whether the nature of the proceedings required three judges to sit. The view was taken that as the applications were for a review of a decision of Stein JA given on 28 October 1997 granting certain stays, it was necessary that they be dealt with by three judges. All parties then agreed that a third judge of appeal could consider the matter on the papers,including a transcript of the submissions before Priestley and Sheller JJA, upon the basis that if the third judge required further oral submissions that would be arranged but, absent that requirement, the Court could deliver its judgment without further hearing. Cole JA became the third judge and has considered all of the material advanced at the oral hearing. No further oral hearing is regarded as necessary.

The parties have also addressed the matter upon the basis that, as this is a review of decision of a single judge of appeal, the onus is on the applicant to show that, in exercising discretion to grant a stay the single judge erred in principle in exercise of a power, or that the decision was plainly wrong.! We will approach the matter on that basis.

BACKGROUND

Sandtara Pty Ltd (Sandtara) leased certain premises to Cenrin Pty Ltd The obligations under that lease were guaranteed by Abigroup Ltd (Abigroup). Abigroup obtained an indemnity in respect of any liability under its guarantee from Gennaro Abignano and Genallco Pty Ltd, whom we will collectively refer to as 'Abignano'. Abignano obtained an indemnity in respect of its prospective liability under the lease from Allan Pitman (Pitman). Pitman claimed he had received an oral indemnity in respect of his prospective liability from Thomas Richard Wenkart (Wenkart).