Bylander International Consortium (Aust) Pty Ltd & Ors -v- Multilink Investments Pty Ltd & Anor [2000] NSWCA 377

New South Wales Court of Appeal

CITATION : Bylander International Consortium (Aust) Pty Ltd & Ors -v- Multilink Investments Pty Ltd & Anor [2000] NSWCA 377 FILE NUMBER(S) : CA 40741/2000 HEARING DATE(S) : 20/12/2000 JUDGMENT DATE : 20 December 2000

PARTIES : Bylander International Consortium (Aust) pty Ltd & Ors -v- Multilink Investments Pty Ltd & Anor JUDGMENT OF : Handley JA at 1

COUNSEL : J. Patel - 3rd Appellant R.G. McHugh - 1st & 2nd Respondents SOLICITORS : Sivananthan T. Krishnar - Appellant Bush Burke & Company - Respondents CATCHWORDS : MOTIONS - motion to stay execution of judgment debt - bankruptcy proceedings pending in Federal Court - granting of stay may prejudice respondent - no prejudice to claimant if appeal expedited - motion refused. CASES CITED: Garcia v National Australia Bank (1998) 194 CLR 395 DECISION : Refer paras. 7, 8 and 9.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA

WEDNESDAY 20 DECEMBER 2000 404741/00 - BYLANDER INTERNATIONAL CONSORTIUM (AUSTRALIA) PTY LIMITED (ACN 079 739 736) & 2 ORS v MULTILINK INVESTMENTS PTY LIMITED (ACN 600 200 526) & 1 OR

JUDGMENT

1 HIS HONOUR: Mr Patel of counsel who appears for the third appellant moves on a Notice of Motion of 6 November filed on behalf of all three appellants for a stay of execution of the judgment entered in the District Court on 18 August this year, pending the hearing of her appeal. Mr Patel does not appear for the appellant company or for the second appellant, but only for the wife of the second appellant. On 11 December, I refused to grant a stay of execution against any of the appellants. Mr Patel has renewed his application for a stay of execution on behalf of the third appellant whose case is different from those of the other appellants. 2 There are significant difficulties with the wife's case and I do not seek to minimise them. On the other hand, the decision of the High Court in Garcia v National Australia Bank (1998) 194 CLR 395 has established that persons in the position of this claimant are sometimes able to avoid liability under guarantee and loan agreements when their husbands have no right to relief. 3 I am reluctant to take any step which would prevent this claimant from prosecuting her appeal and having the merits of the judgment against her fully tested in this Court. However, Mr McHugh has persuaded me that the grant of a stay of execution at this stage might prejudice the respondent. 4 The respondent has served a bankruptcy notice on the wife and her application for an extension of time to comply with that notice is listed before the Federal Court on 10 January. A stay of execution of the judgment against the wife might influence the Federal Court to extend the time for compliance and that could defer, perhaps with irretrievable consequences, the commission of an act of bankruptcy. The respondent could be prejudiced if it lost the benefit of a relation-back period that would enable the validity of the mortgages of the matrimonial home to be fully investigated if Mr and Mrs Satchi are made bankrupt. 5 The refusal of a stay of execution may result in prejudice to Mrs Satchi in that she may, subject to the discretion of the Federal Court, commit an act of bankruptcy before her appeal can be heard. However I do not see that there is any further likelihood of prejudice if, as I propose, this appeal is expedited and is heard during the first fortnight in March. 6 Without presuming to influence or even attempt to influence the decision of the Federal Court, it is my understanding that that Court would ordinarily not make a debtor bankrupt if an appeal from the judgment which established the petitioning creditor's debt is about to be heard in a State Court. I, therefore, think it is unlikely that Mrs Satchi would be made bankrupt before her appeal could be heard by this Court early in March. 7 In those circumstances, the appropriate order in my view is to direct that the appeal be expedited, that it be fixed for hearing during the first fortnight in March, that the appeal books be filed and served by 30 January 2001, and that the appellant's written submissions be filed and served by 14 February. The parties are to approach the Registrar before the end of this week to obtain a date for the hearing of the appeal in the first fortnight of March.