Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2014] NSWCA 375

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2014] NSWCA 375 Hearing dates: 27 October 2014 Decision date: 27 October 2014 Before: Basten JA Decision: (1) Orders (2) and (3) below are made conditional upon the applicant - (a) undertaking to pursue with expedition its application for special leave to appeal to the High Court in matter number S274 of 2014, and (b) acknowledging that the effect of these orders is: (i) to allow the Republic of Nauru access to all and any funds standing to its credit in any account other than those identified in Schedule A attached hereto, in accordance with its contractual arrangements with Westpac Banking Corporation; and (ii) to relieve Westpac Banking Corporation of any obligation under the garnishee order issued 10 September 2014 to withhold payment of moneys otherwise standing to the credit of the Republic of Nauru in any account other than those identified in Schedule A attached hereto and to allow Westpac to pay such moneys to or at the direction of the Republic of Nauru in accordance with its contractual arrangements with the Republic of Nauru. (2) Subject to the undertaking and acknowledgments contained in (1) above, and subject to any order of the High Court of Australia, extend the stay order (2) and order (3) (in respect of compliance with the garnishee order) made on 23 October 2014 until the determination of the application for special leave to appeal to the High Court. (3) The reference to the garnishee order in orders (2) and (3) of the stay order and compliance order made on 23 October 2014 is limited to the accounts identified in Schedule A to the notice of motion filed by the applicant (to be attached to these orders). (4) Grant each party liberty to apply on three days' notice if any variation of these orders is sought before their expiration. (5) Vary principal order (1)(iii) made on 23 October 2014 by adding after the word "Nauru" the words "and Westpac Banking Corporation". (6) Direct that the costs of the notice of motion filed on 24 October 2014 be costs in the proceedings in this Court, payable in accordance with principal order 1(iii) made on 23 October 2014. (7) These orders shall be entered forthwith. [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: PRACTICE AND PROCEDURE - extension of stay pending application for special leave to appeal to High Court - factors relevant in extending stay - whether application for special leave has any prospects of success - whether stay necessary to protect subject matter of litigation - where the balance of convenience lies - undertaking by the applicant to pursue application for special leave expeditiously Legislation Cited: Foreign States Immunities Act 1985 (Cth), Pt IV Judiciary Act 1903 (Cth), s 35A Cases Cited: Jennings Construction Limited v Burgundy Royale Investments (No 1) [1986] HCA 84; 161 CLR 681 Rinehart v Welker [2012] NSWCA 1; 83 NSWLR 347 Category: Consequential orders Parties: Firebird Global Master Fund II Ltd (Applicant) Republic of Nauru (First Respondent) Westpac Banking Corporation (Second Respondent) Representation: Counsel: Mr TGR Parker SC/Mr JAC Potts (Firebird Global Master Fund II Ltd) Mr RA Dick SC/Mr DJ Barnett/Ms N Oreb (Republic of Nauru) Mr R Harris (Westpac Banking Corporation) Solicitors: Clayton Utz (Firebird Global Master Fund II Ltd) Ashurst (Republic of Nauru) Allens (Westpac Banking Corporation) File Number(s): CA 2014/290988; CA 2014/293924 Decision under appeal Jurisdiction: 9111 Citation: [2014] NSWSC 1358 Date of Decision: 2014-10-03 00:00:00 Before: Young AJA File Number(s): SC 2012/147600