Metro Chatswood Pty Ltd v CRI Chatswood Pty Ltd (In Liquidation) (Receivers and Managers Appointed) & Ors [2012] NSWCA 49

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Metro Chatswood Pty Ltd v CRI Chatswood Pty Ltd (In Liquidation) (Receivers and Managers Appointed) & Ors [2012] NSWCA 49 Hearing dates: 21 March 2012 Decision date: 22 March 2012 Before: Meagher JA Decision: (1) Upon the applicant by its counsel giving the usual undertaking as to damages and subject to the applicant complying with Order 2 below, ORDER until further order that the second respondent be restrained from notifying Suncorp-Metway Ltd that it desires payment to be made of the whole or any part or parts of the sum of money guaranteed by Bank Guarantee No 6009 issued by Suncorp-Metway Ltd and dated 21 September 2005. (2) ORDER that the applicant provide security in respect of Order 1 as follows: (a) The applicant pay to a deposit account nominated in writing by the second respondent, a Sum (calculated by the formula set out below) by the following dates: (i) On or before 23 March 2012; and (ii) On or before the 23rd day of the month immediately before the commencement of the quarter commencing on 1 July 2012 and thereafter on or before the 23rd day of the month immediately before the commencement of each following quarter, but only in the event that final judgment in this appeal proceeding has not been delivered as at that date. (b) The Sum equals [$15,000,000 x (BBSY + 3.5%)] ÷ 4 (c) The moneys held in the deposit account nominated in writing by the second respondent to be held in a controlled moneys account on the basis of Freehills' standard controlled moneys account terms of business. Freehills will pay the balance of the controlled moneys in accordance with the terms of any order of the Court or as otherwise agreed in writing by the parties. (3) ORDER that the costs of this application be costs in the appeal. [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: APPEAL - interlocutory injunction pending appeal - balance of convenience - no question of principle Legislation Cited: Civil Procedure Act 2005 Environmental Planning & Assessment Act 1979 Cases Cited: Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd (No 3) [2008] FCAFC 136; (2008) 249 ALR 458 Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110 Lucas Stuart Pty Ltd v Hemmes Hermitage Pty Ltd [2010] NSWCA 283; (2010) 5 BFRA 76 Paringa Mining & Exploration Co PLC v North Flinders Mines Ltd (No 2) [1988] HCA 53; (1988) 165 CLR 452 Varma v Varma (No 2) [2011] NSWCA 13 Category: Principal judgment Parties: Metro Chatswood Pty Ltd (Applicant) CRI Chatswood Pty Ltd (In Liquidation) (Receivers and Managers Appointed) (First Respondent) Commonwealth Bank of Australia (Second Respondent) Representation: Counsel: D B Studdy SC, T J Breakspear (Applicant) No appearance (First Respondent) M R Elliott (Second Respondent) Solicitors: Kemp Strang (Applicant) Freehills (Second Respondent) File Number(s): CA 2012/53584 CA 2012/53585 Decision under appeal Citation: [2012] NSWLEC 6 Date of Decision: 2012-02-09 00:00:00 Before: Craig J File Number(s): 2011/40277 2011/40534