State Bank of NSW v Currabubula Holdings P/L

[1999] NSWCA 181

CITATION:	State Bank of NSW v Currabubula Holdings P/L & Anor [1999] NSWCA 181
FILE NUMBER(S):	CA 40379/99
HEARING DATE(S):	7 June 1999
JUDGMENT DATE:	7 June 1999
PARTIES :	State Bank of NSW v Currabubula Holdings Pty Limited & Anor
JUDGMENT OF:	Meagher JA at 1

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	EINSTEIN J

COUNSEL:	Claimant: C. Harris Opponent: D. Ryan/C. Champion
SOLICITORS:	Claimant: Mallesons Opponent: Gadens
CATCHWORDS:	Notice of Motion - request for stay by appellant - lack of proof.
DECISION:	Notice of Motion dismissed with costs.

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THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 40379/99

CORAM: MEAGHER JA

Monday, 7 June 1999

STATE BANK OF NSW v CURRABUBULA HOLDINGS PTY LIMITED & ANOR

JUDGMENT

1   MEAGHER JA: This is an application, in rather an unusual form, by the State Bank of New South Wales which was ordered by his Honour Justice Einstein to pay to Currabubula Holdings Pty Limited the sum of 1.748 million dollars. The Bank is appealing against his Honour's order and, pending the determination of the appeal, is asking for a stay of his Honour's order.
2   It is unusual, as I think all parties agree, for an appellant to get a stay of an order in favour of the respondent pending appeal. The usual course of events is that the respondent seeks the stay of the order below in those circumstances at the appellant's expenses. However, as Mr Ryan fairly conceded, it is not a question of jurisdiction. There is jurisdiction in the court to make the orders which the Bank is seeking. However, in my view, the Bank should not have either of the orders sought in this Notice of Motion.
3   The evidence furnished by the opponents does indicate that Currabubula Holdings Pty Limited, the beneficiary of his Honour's order, has a surplus of assets over liabilities in the sum of perhaps 3.5 million dollars, and certainly the sum of one or two million. So that the State Bank's basis of complaint is really nothing more than that it fears that it will not be repaid unless there is a stay. No grounds for the basis of that fear are proved. In those circumstances, the Notice of Motion will be dismissed with costs.