THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY v HUGHES BROS PTY LTD [1998] NSWCA 232

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY v HUGHES BROS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

STEIN JA and SHEPPARD AJA 16 February 1998 [1998] NSWCA 232

Stein JA In this matter the claimant seeks leave to appeal against an interlocutory order made by the Chief Judge of the Commercial Division on 5 August 1997 for an interim payment pursuant to s76E of the Supreme Court Act 1970.

In my opinion leave should be refused. It is clear that s76E involves a number of discretionary judgments. The particular subsection as to which the error in the exercise of the discretion is said to arise is subs4(c). That subsection probably involves an exercise of discretionary judgment where the word 'may' appears in the third word in the subsection, although there may be room for an argument that it means 'must', and is mandatory. However, what is clear is that in relation to the part of the sub-clause that speaks of the defendant satisfying the court, a discretion arises for the court to exercise, in particular under subs4(c) thereof.

For my part, it has not been shown that the decision of Giles J, in relation to the exercise of discretion under s76E(4), is attended with sufficient doubt as to justify leave to appeal being granted. I would refuse leave with costs.

Sheppard AJA I have also decided that the appropriate decision is to refuse leave, but I have done so with some anxiety. I have a question in my mind about the proper construction and ambit of s76E which may have benefited from a construction by this court, as would have been the case perhaps if this matter had gone on. The trouble about that, however, is that there has been no argument, either before his Honour or before us, that the section has no application to a case such as this, so that that aspect of the matter seems to me to be one that I should put aside.