CENEPRO PTY LTD AND ANOR v GLENN PEARSON AND ASSOCIATES PTY LTD AND ANOR [1998] NSWCA 54

CENEPRO PTY LTD v GLENN PEARSON AND ASSOCIATES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE JA 5 May 1998

[1998] NSWCA 54

Cole JA An application has been made by way of notice of motion for a stay pending determination of the appeal. The appeal is against a decision of Mr Justice Bryson, delivered on 11 December 1996.

His Honour was dealing with a claim by what I shall call the Pearson interests against what I shall call the Jamieson interests. The claim arose out of a deed dated 14 November 1991 made between Mr Jamieson and Mr Pearson, that deed being consequential upon arrangements between them relating to joint venture arrangements for property development.

Pursuant to cl2 of that deed the Pearson interests claimed $380,000 and pursuant to cl3 they claimed $300,000. In respect of each of those claims there had been some offsetting payments so that the balance claimed was about $244,000 under cl2 and about $77,000 under cl3. The Pearson interests were successful before Mr Justice Bryson and together with interests the result was a judgment in favour of the Pearson interests for a sum slightly in excess of $500,000.

Immediately after delivery of the judgment there were suggestions by the Jamieson interests that they would appeal and indeed that they would seek a stay. Nothing was done pursuant to that intimation and no application for a stay was made until the notice of motion of 22 April 1998. There seems little doubt that was generated by the fact that bankruptcy proceedings had been commenced reliant upon the judgment against Mr Jamieson.

Senior Counsel for the applicant has indicated to the Court that his client is not in a position to offer security for any portion of the judgment, nor is he in a position to bring into Court any portion of the judgment. He has contended that there are reasonable grounds upon which the appellant can claim to have prospects of success.