Geilston Pty Ltd v Tricom Equities Ltd [2010] NSWCA 204

New South Wales Court of Appeal

CITATION: Geilston Pty Ltd v Tricom Equities Ltd [2010] NSWCA 204

HEARING DATE(S): 16/08/2010

JUDGMENT DATE: 16 August 2010

JUDGMENT OF: Handley AJA

EX TEMPORE JUDGMENT DATE: 16 August 2010

DECISION: The appeal is dismissed with costs as incompetent, including the costs of the present motion and the amended motion.

LEGISLATION CITED: Supreme Court Act, s 101(2)(r)

PARTIES: Geilston Pty Ltd - Appellant Tricom Equities Limited - Respondent

FILE NUMBER(S): CA 07/266372

COUNSEL: T. Koltai in Person - Appellant A. Fox - Respondent

SOLICITORS: N/A - Appellant Henry Davis York - Respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 07/266372

LOWER COURT JUDICIAL OFFICER: McDougall J

LOWER COURT DATE OF DECISION: 22/02/2010

LOWER COURT MEDIUM NEUTRAL CITATION: [2010] NSWSC 119

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 266372/07

HANDLEY AJA

MONDAY 16 AUGUST 2010 GEILSTON PTY LTD v TRICOM EQUITIES LTD v Judgment 1 HANDLEY AJA: On 22 February 2010 McDougall J heard an action in the Commercial List brought by Geilston Pty Limited in which, as his Honour described the case, the plaintiff sued to recover shares in Synergy Metals Limited held by the defendant, Tricom. It is common ground that in February 2001 Geilston agreed to lend Tricom some 4.6 million shares in ISP Ltd held by Geilston and that arrangement was documented in an informal six line agreement which the Judge set out in [11] of his reasons. 2 Tricom agreed to return the shares to Geilston within twenty working days. During that period the shares were suspended by the AXS and Tricom took the view that this prevented it returning the shares. The Judge found that Mr Knauer explained this to Mr Koltai who accepted the position and agreed that the conversation could have taken place within the twenty working day period. 3 There was then a corporate reorganisation and the shares were consolidated so that 4.6 million shares in ISP Ltd in February 2001 became 460,000 shares in Synergy Metals Ltd at some date in October or November that year. At that stage or shortly thereafter Geilston sought the return of 4.6 million shares but Tricom contended that it was only obliged to return the consolidated shareholding of 460,000 shares. 4 This was the case which went to trial; the plaintiff contending that it was entitled to 4.6 million shares and the defendant contending that its obligation was to return the equivalent, namely, 460,000 shares. The Judge upheld the contention of Tricom and ordered it to transfer those shares in Synergy Metals Limited to the plaintiff. 5 There is no evidence before the court of the value of those shares now or at any material time after they were suspended by the ASX in February 2001, but it appears that they are worth only a few cents a share. The hearing before me has been conducted on that basis. 6 Even if the appellant was entitled to 4.6 million shares at one or two cents a share or a little more, the appellable amount in s 101(2)(r) of the Supreme Court Act for an appeal as of right would not be met, and the appellant is already entitled to 460,000 shares under the order made by the trial Judge. 7 Mr Koltai, who appeared as a director on behalf of the appellant, sought to persuade me that the appeal was competent and that $100,000 or more was involved. He was, I think, taken somewhat by surprise by the nature of the incompetency on which the respondent relied in support of its notice of motion. Nevertheless, he declined my offer of an adjournment and, after a short recess to collect his thoughts, he elected to proceed. 8 Mr Koltai sought to support the competency of the appeal by referring to difficulties, which he suggested amounted to negligence, created by the second firm of solicitors he instructed and those created by being forced on by Hammerschlag J late in 2009 when a hearing date was fixed for early 2010 and in February 2010 when an adjournment was refused. 9 He told me that the primary relief sought in the appeal was the setting aside of the orders of McDougall J and a re-hearing pursuant to amended pleadings. The prospect of the Court of Appeal ordering a re-hearing on new pleadings in an appeal which might be heard at the end of 2010 or early in 2011, based on events which occurred in 2001, can be safely disregarded in considering its competency. 10 Mr Koltai relied on the fact that he could not vote the shares in June 2001 when there was a corporate reorganisation of the company and that Tricom did not vote his shares as he would have wished. 11 These matters were not pleaded and at this late stage, following a trial on the merits, there is no realistic possibility that the court would allow them to be raised now for the first time, assuming that would be possible after the limitation period has expired. 12 The case is and remains one for the return of shares pursuant to the agreement of February 2001. It was not suggested that any dividends had been declared or that the shares might have been sold to advantage in the meantime. If the appeal succeeds and the appellant is entitled to 4.6 million shares, then, on their conceded value at the present time the appellable amount of $100,000 is not satisfied and the appeal is incompetent. 13 I must therefore order that the appeal be dismissed as incompetent, but I do so without prejudice to an application that the appellant may decide to make, if so advised, for leave to appeal from the judgment of McDougall J of 22 February and his final orders on 1 March. The filing of the notice of intention to appeal on 22 March 2010 gave the intending appellant three months from the material date, which was either 22 February or, 1 March, to lodge either an appeal or an application for leave to appeal. 14 The appellant, acting through an unqualified director, made the wrong choice on 24 May by lodging an appeal as of right, but the Court does not penalise litigants in person or even those who are professionally represented, who make a wrong choice of this nature, provided they made clear their intention to challenge the underlying judgment within the relevant time limit, as Geilston Pty Limited did. 15 For that reason I have expressly provided that the dismissal of the appeal as incompetent is not to prejudice any application for leave to appeal. I also direct that the respondent, Tricom Equities Limited, may, without any further order, use the affidavits of Eric Herman sworn 21 June 2010 and 10 August on any application for leave to appeal. 16 The appeal should be dismissed with costs as incompetent, including the costs of the motion and the amended motion.