VENTURE INDUSTRIES and ANOR v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION [1998] NSWCA 248

VENTURE INDUSTRIES vy AUSTRALIAN COMPETITION & CONSUMER COMMISSION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

STEIN JA 22 June 1998

[1998] NSWCA 248 Stein JA

Motion

This is a notice of motion brought by the ACCC, the first respondent to an appeal by Venture Industries Pty Ltd, and Harry and Penelope Kioussis determined by the Court of Appeal on 3 March 1998. The appeal was dismissed. Subsequently, an application for a stay of judgment was made pending a special leave application to the High Court.

The stay application took a considerable time to dispose of. Ultimately, on 28 May 1998, a stay was granted. It was, however, a conditional stay and some time was taken by the Court in working out the terms of that stay. Eventually, those terms were that the stay was granted upon condition that the payment of the judgment debt, interest and costs, (estimated to total approximately $2.9 million) be secured by first mortgages over specified real estate. Instruments of mortgage, in a registerable form, were to be executed and lodged for registration by 4pm on 5 June 1998. There were other conditions of the stay which I need not mention.

The affidavit in support of the notice of motion, sworn

by Paul Winston Fox on 16 June 1998, indicates the tortuous process and difficulties in obtaining compliance with the stay order by the delivery of duly executed mortgages over the property set out in the schedule to the order. The 5th of June passed with no compliance forthcoming. Nor did there appear to be any real likelihood of that occurring in the period after 5 June. Accordingly, on 17 June the ACCC took out the subject notice of motion seeking to discharge orders 1 and 2, being the stay and the conditions upon the stay made by the court on 28 May 1998.

On the return of the summons, Mr Aitken appeared for the opponents. He made, I suppose what one might call, a last ditch stand. He has at all times been of assistance to the court, unfailingly courteous and unfailingly frank in relation to the difficulties apparently encountered with his instructing attorney Mr Milios, who is the solicitor on the record for the appellants. On the return of the notice of motion he convinced me to give one last opportunity for compliance by the delivery of the mortgages. It appeared to be his then understanding that compliance was very close and may take place by the end of last week. Accordingly, I was prepared to give one last opportunity and I stood the motion over to today (22 June 1998).