Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 192 Hearing dates: 4 July 2011 Decision date: 04 July 2011 Before: Basten JA at 1 Decision: (1) Direct the Registrar to call upon the guarantee provided to him pursuant to the orders of Allsop P of 8 February 2011 and to the extent necessary vary the stay granted by Allsop P on 8 February 2011 to permit that step to be taken. (2) Stand over orders 1 and 3 of the notice of motion filed 27 June 2011 until Monday 18 July 2011. (3) Direct that any evidence to be filed by the respondent to the motion in resisting the motion be filed by 11 July 2011. (4) Order that the costs of today be costs in the motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - interlocutory orders - stay - stay conditioned on provision of guarantee - application to have Registrar call upon guarantee Category: Procedural and other rulings Parties: Summer Hill Business Estate Pty Ltd - First Appellant West Apartments Pty Ltd - Second Appellant Demian Constructions Pty Ltd - Third Appellant Shimden Pty Ltd - Fourth Appellant CTP Pty Ltd - Fifth Appellant Tremdell Pty Ltd - Sixth Appellant C A R Holdings Pty Ltd - Seventh Appellant Demian Holdings Pty Ltd - Eighth Appellant Riverland Estate Pty Ltd - Ninth Appellant Demian Investments Pty Ltd - Tenth Appellant Belgrave Holdings Pty Ltd - Eleventh Appellant Equititrust Limited - Respondent Representation: Counsel: C Byrne (Solicitor) - Appellants J Hogan-Doran - Respondent Solicitors: Blackstone Waterhouse Lawyers - Appellants Tucker & Cowen Solicitors - Respondent File Number(s): 2010/283982 Decision under appeal Citation: Summer Hill Business Estate Pty Ltd v Equititrust Limited [2010] NSWSC 776 Date of Decision: 2010-07-30 00:00:00 Before: Pembroke J File Number(s): SC 2010/67275 Judgment 1HIS HONOUR: In this matter there is an application by the respondent to the appeal to have the Registrar call upon a guarantee provided to the Registrar in accordance with an order made by the President on 8 February 2011: order 2 in notice of motion. The provision of the guarantee was part of the conditions upon which a stay was granted of orders made by Justice Pembroke on 6 December 2010. 2The notice of motion also seeks payment of money held by way of security for costs, again in accordance with the orders of the President of 8 February 2011: order 3 in notice of motion. It also seeks an order that the Registrar, upon receipt of the sum paid to him pursuant to the call on the guarantee, pay that sum to the respondent. 3I propose to make three orders and give one direction. Firstly, in relation to order 2 in the notice of motion I indicate that the Registrar intends to call upon the guarantee as I understand it today. That is a matter which is of some urgency because the guarantee is expressed to continue for twenty-eight days from the date on which judgment was delivered in this court. 4Ms Byrne, who appears in the absence of counsel for the applicant, seeks to have that and the other orders sought adjourned until next Monday when counsel will be available. 5I do not intend to make order 3, but there is an indication that there may be evidence to be filed in response to that. If that is the case, then time will be needed to do that and in the circumstances I do not think it sufficient to adjourn for seven days only. 6The other matter is that the order by way of stay made by the President, according to the papers on 8 February 2011, was until further order. That order may, in its present form, prevent payment of the judgment to the respondent. I intend to vary the order so that it does not prevent payment to the court on the demand of the Registrar. Accordingly, I make the following orders: (1) Direct the Registrar to call upon the guarantee provided to him pursuant to the orders of Allsop P of 8 February 2011 and to the extent necessary vary the stay granted by Allsop P on 8 February 2011 to permit that step to be taken. (2) Stand over orders 1 and 3 of the notice of motion filed 27 June 2011 until Monday 18 July 2011. (3) Direct that any evidence to be filed by the respondent to the motion in resisting the motion be filed by 11 July 2011. (4) Order that the costs of today be costs in the motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2011