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. It then becomes a question of the exercise of discretion. The fact that I might have exercised a discretion differently from the judge in a case such as this is not an indication that the exercise was manifestly wrong or otherwise miscarried. We have also had the benefit of some material put before us in an afffidavit of Mr Pudig sworn today in which there are a number of annexures; one of these is his Honour's reasons delivered on 19 December for refusal of an application for a stay. It is obvious that his Honour again considered many of the matters that are considered by him in the judgment leave to appeal against which is sought here. It is, I think, a matter of some force that his Honour, having reflected upon the same material a second time, more or less formed the same conclusion about it. It is true that there has been some discussion about the detail of the balance sheet of the company, and about some other matters, and I need not to go into those at this stage; but I think on the whole it is unlikely that if this case were to go on the result would be otherwise than the dismissal of the appeal on the basis that it would be held that the judge's discretion did not miscarry. Accordingly, I share in the views that have been expressed by my brother, Stein JA. 2 UNREPORTED JUDGMENTS Stein JA The order of the court will be that leave is refused with costs. Leave refused with costs.