ABIGROUP CONTRACTORS PTY LTD v ALGONS ENGINEERING PTY LTD [1998] NSWCA 2

ABIGROUP CONTRACTORS PTY LTD vy ALGONS ENGINEERING PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

STEIN JA 17 June 1998

[1998] NSWCA 2 Stein JA

Motion for Expedition

Abigroup is the defendant/appellant in these proceedings. It seeks expedition of an appeal which involves a discrete issue as to the construction of a clause in a contract.

The appeal arises out of a decision of Rolfe J given on 4 December 1979.

The appeal required leave, which was granted by the Court of Appeal on 15 December 1997. The summons seeking leave to appeal also sought expedition.

So far as I can ascertain, and I have no personal memory of the matter, it does not appear that the request for expedition was the subject of argument on 15 December last.

It appears that on that day, when granting leave, the Court refused expedition, although the transcript of the ruling or judgment on leave is, for some reason, unavailable.

Notwithstanding Mr Faulkner's submissions on behalf of Algons, I am prepared to assume that there never was a hearing on the merits of the application for expedition last December. Accordingly, I will treat this application for expedition afresh.

The essential argument for expedition made by Abigroup is that if Abigroup is successful in the appeal, there will be no need to hear its cross-claim. Abigroup says that if the appeal is not expedited, the parties will incur unnecessary costs in the substantive proceedings, and the appeal will be rendered nugatory. I am summarising more detailed submissions made by Mr Corsaro on behalf of Abigroup.

Algons dispute Abigroup's claims, and oppose expedition. The reasons for its opposition are to be found in the affidavits of Richard Henry Anicich, sworn 24 May and 2 June 1998 respectively. They have been expanded in oral submissions made by Mr Faulkner on behalf of Abigroup. Also,in some written points of contention to the expedition motion which he has handed to the Court.