CENTURIAN CONSTRUCTIONS PTY LIMITED v_ BECA DEVELOPMENTS PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MASON P 6 February 1998 [1998] NSWCA 55 Mason P. This matter was first before me on 4 February. At that stage Mr Newman appeared for the claimant, Centurian Constructions Pty Limited (in liquidation), and Mr Durston appeared for the opponent, BECA Developments Pty Limited (in liquidation). Young J had ordered that Centurian be wound up on 2 February 1998. That order was made in proceedings commenced by the opponent. The central issue in those proceedings was whether the claimant had established that it had cross-claims which exceeded in value the sum claimed by the opponent that was not in dispute. That claim had been made by way of a statutory demand. Young J had heard contested proceedings and handed down a reserved judgment on 21 August 1997. He found that the cross-claim was good in part, but not good enough in total amount to exceed the admitted indebtedness of Centurian to BECA. The matter was, however, stood overwithout a winding-up order being made. In September Centurian went into voluntary administration. In October Centurian entered into a deed of company arrangement. However, that deed of company arrangement was terminated at a meeting of creditors of Centurian held on 23 January this year. Last minute attempts to persuade Young J not to carry his reasons into a winding-up order were unsuccessful and as I have already indicated the winding-up order was made on 2 February. A liquidator has been appointed. The original process in the Court of Appeal was a notice of appeal challenging Young J's judgment of 21 August 1997. There are real problems with that because that judgment was not a final judgment and, apart from an order for an adjournment, did not result in any order. Mr Newman, who appeared on behalf of the claimant, accepted, and I think properly so, that the appealable order was that made this week. He also accepted that the appeal is not of right, but a matter requiring leave. A summons seeking that leave was filed some time this week. That summons was amended on 5 February following the dialogue that occurred when this matter was last before me. On 4 February Mr Durston indicated his intention to challenge Mr Newman'sretainer in the light of Mr Newman's frank and ready concession that he was not instructed by the liquidator. The Court examined something of the substance of the matter, putting the retainer issue to one side, but not putting it away entirely. I must say that on the material to which I was taken on the last occasion, and I have not heard Mr Durston on this, there was evidence which might have suggested that there was an arguable basis for challenging Young J's order. I express no final view on that matter. 2 UNREPORTED JUDGMENTS Yesterday, as I said, an amended summons was filed by Mr Newman on behalf of Centurian Constructions. It would appear that Mr Newman believed that he had the consent of the liquidator to do this. I can understand how that belief may have flowed from the letter of 4 February 1998, but I would read that letter as indicating no more than concurrence with Mr Pselletes seeking to appeal. Mr Pselletes is a director of the complainant; apparently the claimant company is his family company. The affidavit of Mr Webeck filed today established very clearly (by reference to a later letter from the liquidator) that the liquidator has not given Mr Newman permission to represent the company, at least at this stage. Obviously there are questions of costs that would have to be worked out before that could occur and Mr Newman now accepts in the light of the evidence as it now is that he does not have the authority of the company to bring proceedings on its behalf. The question of whether the proceedings might be amended so as to allow Mr Pselletes to continue the application for leave was debated this morning. I don't see much utility in doing this. If Mr Pselletes does wish to lodge an application for leave to appeal, he will need to put the papers in order and this might as well be done by filing fresh process. Mr Newman has indicated that he will not be representing Mr Pselletes in those proceedings. There are obviously going to be issues about security for costs and those issues may well spill over into the foreshadowed application for a stay that Mr Pselletes would make in aid of his application for leave to appeal. I think the better course is to dispose of the present proceedings in a proper way and to let Mr Pselletes, if so advised, take whatever steps he is minded to do. Iam not satisfied that it is proper at this stage to grant a stay, notwithstanding the provisional view I have expressed as to the possible merits of the application. My feeling is that the better course would be for Mr Pselletes, if he is so minded, to seek to bring on an application for leave as quickly as possible and to seek the stay at the same time as the leave application is sought. There is no reason why that couldn't occur on Monday week next and certainly nothing has been put before me to show any urgency in granting a stay. There may well be, but there is no evidence to that effect. Unfortunately for Mr Newman he thought he had a retainer, but he clearlydid not and he now frankly acknowledges that he does not. I have great sympathy for his situation. However, the costs have been incurred and there is no possibility of ordering those costs against Centurian Constructions absent the retainer, and the usual situation that flows from a successful challenge to a retainer is that the costs are ordered against the person who purported to act on behalf of the party. The orders I therefore make are that the application for leave to appeal filed on behalf of Centurian Constructions Pty Limited is struck out and that Mr Newman pay the opponent's costs on an indemnity basis. I will not formally dispose of the notice of appeal that was lodged last year, but I expect that the parties will make their arrangements for that process to be disposed of if they accept that it cannot be prosecuted. As I have already indicated, if Mr Pselletes wishes to pick up the ball, as it were, and commence fresh proceedings, that is a matter for him and his advisers. Orders accordingly.