MANGRAVITI v TRIDEN CORPORATION LIMITED [1998] NSWCA 136

MANGRAVITI v TRIDEN CORPORATION LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P, MEAGHER JA and SHELLER JA 16 March 1998

[1998] NSWCA 136

Mason P. Application is made, pursuant to s 46(4) of the Supreme Court Act to discharge the order of Beazley J made on 23 February 1998. Her Honour effectively refused an application for a stay. The claimant accepts that this Court in the exercise of that jurisdiction does not look at the matter de novo, but treats it as if it were an appeal from a discretionary judgment: Australian Consolidated Press Limited v Baltinos Court of Appeal unreported, 18 September 1995.

The application for a stay arises out of the dismissal by Brownie J of proceedings brought by a minority shareholder of Triden Corporation Limited, which sought various categories of relief against that company based upon the conduct of the persons in control of the company, and the company's dealings with a subsidiary, Triden Constructions Pty Limited.

Various grounds of appeal are taken in the notice of appeal, but the argument before Beazley J and before us centred on two.

I should indicate that the stay is sought in relation to the costs order, which was the only monetary order flowing from the dismissal of the proceedings below. The costs which the claimant was ordered to pay on an indemnity basis have been assessed, and allowing for a minor offset with respect to some interlocutory proceedings costs, stand at something over $350,000.

Her Honour proceeded on the basis that for all practical purposes the appeal would be rendered nugatory unless a stay were granted. She did this on the basis of the admitted insolvency of the claimant.

The matter which moved her Honour was in essence the view she formed as to the strength of the appeal. She looked at the appeal with reference to the two grounds upon which counsel for the claimant, Mr Brereton, had focused attention.