J Dan Pty Ltd v Colliers Jardin (NSW) Pty Ltd

[1995] FCA 390

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No.  NG 3073  of  1995
  )
GENERAL DIVISION                 )

BETWEEN:J DAN PTY LTD

Applicant

AND:COLLIERS JARDINE (NSW) PTY LTD

Respondent

28 April 1995

REASONS FOR JUDGMENT
LOCKHART J.
     There are before the court two matters.  One is a notice of motion in matter NG 20 of 1995 which is an appeal by Balog Investments Pty Ltd and J Dan Pty Ltd from a judgment of a judge of this Court, Beazley J, given on 16 December 1994.  Her Honour ordered those two companies to pay to Colliers Jardine (NSW) Pty Ltd the sum of $126,000 and made an order for costs in favour of Colliers Jardine.  There is also a cross-appeal in that matter, and the appeal has been fixed for hearing in the latter part of May 1995 before a Full Court in Sydney.  The motion by J. Dan Pty Ltd in the appeal is to stay the enforcement of the orders of Beazley J pending the determination of the appeal.

The other matter before the Court is an application under the Corporations Law by J. Dan Pty Ltd seeking an order pursuant to s 459G of the Corporations Law setting aside a statutory demand served upon J Dan Pty Ltd by Colliers Jardine, the demand being dated 10 February 1995 and requiring payment of $127,993.56 which is essentially based upon the judgment of 16 December 1994.

By consent, both the motion and the appeal and the application under the Corporations Law are being heard together by the Court, one in the appellate jurisdiction but exercisable by a single judge; the other in the original jurisdiction of the Court.

The evidence in support of the two matters is an affidavit of a Dr Dan who is a director of J Dan Pty Ltd.  In essence, the deponent says that he believes there is a genuine dispute between the parties as to whether Colliers Jardine is owed the sum claimed in the statutory demand, and that he has instructed his solicitors to appeal on Beazley Js judgment.

The evidence does not satisfy me that any orders of the kind that are sought should be made.  The mere fact that an appeal has been brought on a judgment of a court is not, in itself, sufficient to support a stay application nor would it be sufficient to lead to the setting aside of the statutory demand.

However, if Colliers Jardine should proceed upon non-compliance with the statutory demand to file an application to wind up J Dan Pty Limited, it will be for the Court hearing that application to decide whether, upon an application for adjournment of it being made by J Dan Pty Limited, it is appropriate to proceed to hear an application to wind up whilst an appeal is pending, if that be the fact at that time.  The Court has an undoubted discretion to adjourn applications to wind up for good reasons, and in some cases such an adjournment is supported by the pendency of an appeal, properly instituted and with some reasonable prospect of success.  Whether that is so in this case, I have no idea and I express no view upon it.

The application in matter NG3073 of 1995 and the motion in NG020 of 1995, each is dismissed.  In each matter I order J. Dan Pty Limited to pay the costs of Colliers Jardine (NSW) Pty Limited.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated:  28 April  1995

Counsel for the Applicant    :        Mr Hodgekiss

Solicitors for the Applicant :        D C Balog & Associates

Counsel for the Respondent   :        Mr J B Simpkins

Solicitors for the Respondent     :        Minter Ellison

Date of Hearing             :        28 April 1995

Date of Judgment            :        28 April 1995