ABIGROUP LTD v SANDTARA PTY LTD; WENKART v PITMAN AND ANOR; ABIGNANO AND ANOR v ABIGROUP LTD [1998] NSWCA 3

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

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P and POWELL JA 17 April 1998

[1998] NSWCA 3

Mason P The Court is of the view that the application for a stay should be refused. Given the lateness of the hour I will necessarily be brief in the statement of the reasons which I offer in support of my conclusion to that effect.

Judgment stands reserved in relation to an appeal and an application for leave to appeal which in combination challenge an order of Hunter J that Dr Wenkart pay $1.3 million to Mr Pitman on certain terms.

The complexities of the issues debated in the appeal are such that it will take some time to resolve the appeal. Nothing which I am saying today should indicate any conclusion that the appeal lacks substance.

There are related proceedings which unfortunately were not heard at the same time as the appeal. They have been set down for hearing in mid June before a similarly constituted court. It is obvious that judgment will not be given until the second half of this year in relation to the various matters.

There were directions about the filing of evidence in relation to the stay application. The evidence that was filed on Dr Wenkart's behalf was that of his solicitor Mr Maxwell who provided the evidence on information and belief. ParaS of Mr Maxwell's affidavit of 27 March said:

"5. Dr Wenkart has no assets presently held by him either legally or beneficially which would enable him at this time to raise the amount of the judgment debt in the Court below. He is at this time unable to obtain or give security for that amount, because all assets which might otherwise be available to him for the obtaining or giving of such security are fully encumbered."

Dr Wenkart's counsel invited the Court to proceed on the basis that Dr Wenkart is unable to pay the money he has been ordered to pay. I am content to proceed on that basis. It seems likely to be the case although I am not in a position to form any conclusion given the complexity of Dr Wenkart's financial position and some of the uncertainties raised by evidence given by Dr Wenkart in a recent examination proceeding.