White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd (No 2)
[2009] NSWCA 194
•23 July 2009
Appeal Outcome: Appeal allowed with costs, 26 May 2010 [2010] HCA 19
New South Wales
Court of Appeal
CITATION: White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd & Anor (No 2) [2009] NSWCA 194 HEARING DATE(S): On the Papers
JUDGMENT DATE:
23 July 2009JUDGMENT OF: Giles JA at 1; Basten JA at 2; Macfarlan JA at 31 DECISION: (1) Vary Order (d) made on 3 June 2009 by deleting the words "on or before the date 3 months from the date of these orders" and replacing them with the words "as expeditiously as possible".
(2) Order that in the event that the second respondent does not comply with order 4 as entered on 12 June 2009 and as subsequently varied, a Registrar of the Court is empowered to execute all documents and do all things as may be necessary to transfer to the appellant the second respondent's right, title and interest in the land contained in Folio Identifier 2/1114604.
(3) Order that the words "subject to any different order that may be made by the Supreme Court of New South Wales in any other proceedings to which the appellant and respondents are parties" be added to the end of Order 1 made by Tobias JA on 6 April 2009, as subsequently extended.
(4) Grant leave to Walker Corporation Pty Ltd to file in court the Amended Notice of Motion dated 22 June 2009 provided by it to the Court.
(5) Dismiss the Amended Notice of Motion of Walker Corporation Pty Ltd and order Walker Corporation Pty Ltd to pay the costs of the appellant of the Amended Notice of Motion (including its costs of the Notice of Motion which it superseded).
(6) Order that the respondents pay the appellant's costs of its Notice of Motion dated 5 June 2009.
(7) Stay, until further order, Order (d) made on 3 June 2009 and as varied by Order (1) above.
(8) Liberty to any party to apply upon three days notice to the other parties for discharge or variation of Order (7) above.CATCHWORDS: PROCEDURE - joinder of parties - application for joinder after judgment given on appeal - whether joinder necessary - whether orders made directly affected the rights of the applicant for joinder - PROCEDURE - when judgment entered - application for variation of orders and joinder of party after judgment entered CATEGORY: Procedural and other rulings CASES CITED: News Ltd v Australian Rugby Football League Ltd [1996] 64 FCR 410
The State of Victoria v Sutton [1998] HCA 56; (1998-1999) 195 CLR 291PARTIES: White City Tennis Club Ltd (Appellant)
John Alexander's Clubs Pty Ltd (First Respondent)
Poplar Holdings Pty Ltd (Second Respondent)FILE NUMBER(S): CA 40038/09 COUNSEL: S T White SC/J R Clarke (Appellant)
J M Ireland QC/J S Cooke (Respondents)SOLICITORS: Kemp Strang Lawyers (Appellant)
Colin Biggers & Paisley (Respondents)LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 3359/07 LOWER COURT JUDICIAL OFFICER: Young CJ in Eq LOWER COURT DATE OF DECISION: 21 November 2008 LOWER COURT MEDIUM NEUTRAL CITATION: White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd [2008] NSWSC 1225
CA 40038/09
SC 3359/07Thursday 23 July 2009GILES JA
BASTEN JA
MACFARLAN JA
1 GILES JA: I agree with Macfarlan JA.
2 BASTEN JA: On 3 June 2009 this Court handed down judgment and made orders finally disposing of the appeal, subject to one qualification: [2009] NSWCA 114. The orders included a declaration that the second respondent (Poplar Holdings Pty Ltd) hold its interest in the land the subject of the proceedings on a constructive trust for the appellant (White City Tennis Club Ltd). Order (d) required that, upon the appellant paying to the second respondent a specified amount “on or before the date 3 months from the date of these orders” the second respondent transfer its interest in the land to the appellant. Order (e) granted the parties liberty to apply on seven days notice to vary the period of time referred to in order (d).
3 Subject to statutory exceptions this Court has no power to set aside or vary orders once they have been entered: DJL v Central Authority [2000] HCA 17; 201 CLR 226 at [38] and [50]. (A separate exception with respect to judgments obtained by fraud may be put to one side.) Of critical importance to this scheme is the time at which a judgment or order is entered or “taken to be entered”. There being no “order otherwise” in the present case, the orders of this Court made on 3 June 2009 were taken to be entered when they were “recorded in the court’s computerised court record system”: Uniform Civil Procedure Rules 2005 (NSW), r 36.11(2). The Court’s computerised record system indicates that they were entered on 3 June 2009.
4 For reasons which are not clear, but appear to have involved an oversight in the registry, only orders (a)-(d) were entered on that date. However, they were the substantive orders now in dispute and nothing would seem to turn on that irregularity. If those orders are to be varied that can only be done pursuant to a notice of motion seeking variation and filed within 14 days of entry: r 36.16(3A). The Court has no power to extend that time: sub-r (3C).
5 On 11 June 2009 the solicitors for the respondents filed a document headed “Judgment/Order” in accordance with form 43 of the Uniform Civil Procedure forms. The form states that it was provided for sealing under UCPR 36.12. That rule requires the Registrar to furnish a sealed copy of “any judgment or order that has been entered”: r 36.12(1)(a). The document contained in handwriting against the item “date entered”, 12 June 2009. Instead of being lettered, the orders were numbered. That aside, the orders included, each of the orders (a)-(d) as entered in the computer record on 3 June (with the correction of one spelling mistake). It also included the last three orders, which had not been included in the computer record. Those three orders have never been included in the Court’s computerised court record system. Despite the lack of any express order that the orders of 3 June be “entered forthwith” which appears to condition the operation of sub-r 36.11(2A), it may be that the signing and sealing of a document embodying the last three orders means that those orders were indeed entered on 12 June. However, sub-r (2A) provides that orders are taken to be entered either when they are embodied in such a document or when recorded in the court record system, whichever first occurs. It follows that the substantive orders (a)-(d) were in fact entered on 3 June 2009.
6 At a directions hearing on 2 July 2009 the parties handed up short minutes of orders to be made “By consent of the Appellant and Respondents”. Although the document says that the order was made or given on 29 June 2009, that appears not to be correct. The matter appears not to have been before a judge of the Court on 29 June and no orders were made on 2 July when the “consent orders” were handed up.
7 The status of the proposed consent orders is unclear. The first provided that “orders 4 and 5 made on 3 June 2009 be stayed until further order”. This was presumably intended as a reference to orders (d) and (e). As explained by Macfarlan JA, there was no point in staying order (e) which involved a grant of liberty to apply which had expired. The appropriate form of the stay will be considered further below.
8 The second “consent order” was in the following terms:
- “Order that the stay imposed by order 1 above shall operate to suspend from the date of this order the running of the 3 months period provided by order 4 made on 3 June 2009.”
9 The preferable course is to remove the temporal operation of the order, as originally sought by the appellant. As the three month period will have run almost half its length by the time the stay takes effect, the continuation of the order in that form is inappropriate.
10 The third consent order sought would grant liberty to either the appellant or the respondents to apply upon 48 hours notice for any variation or discharge of the stay. This proposal will also be dealt with in considering the proper form of the stay. The consent orders did not otherwise indicate how the orders sought by the appellant in its notice of motion should be addressed. There was no consent to the notice of motion being otherwise dismissed. There was no provision for the costs of either notice of motion. No submissions were filed after the consent orders were handed up. In the circumstances, the Court should only make orders in accordance with the proposed consent orders if it considers them otherwise appropriate.
11 The appellant filed a notice of motion on 5 June 2009 seeking three orders. The second was not pressed: see written submissions, 12 June 2009, par 2. The first order had two limbs, both relating to order (d) made on 3 June 2009. The first limb sought to remove the temporal requirement that the appellant pay the specified amount “on or before the date 3 months from the date of these orders”. An order to that effect should be made. Such an order was anticipated by order (e) made on 3 June. The result is consistent with the application for stay of the orders made by this Court, as sought by the respondents by notice of motion filed on 12 June 2009 on the basis that they had instructions to apply to the High Court for special leave to appeal from the judgment and orders of this Court.
12 The second limb of order 1 sought to confer on a Registrar of the Court power to execute the necessary documents to effect the transfer of the land, in the event that the second respondent fails to comply with order (d). Although it was not sought in the course of the proceedings, it is consequential upon order (d) and in a form commonly made in suits for specific performance as protection against further default by the party subject to the equitable obligation. The order should be made substantially as sought.
13 The third order sought by the appellant involved the continuation of an injunction restraining the Registrar-General from registering an interest over the interest of the second respondent in the land. On 6 April 2009, before the hearing of the appeal, Tobias JA made an order in the following terms:
- “Order that the Registrar-General of New South Wales be restrained from taking any steps to register or permit the registration of an interest over the interest of Poplar Holdings in the Property at Folio Identifier 2/1114604 until 5pm on 5 May 2009 or until further order of the Court.”
14 On 5 May 2009 the order was extended so that it operated “until 5pm on the day 7 days after the Court delivers judgment in the appeal”. That day was 10 June 2009. On 10 June the temporal element was varied to read “until further order”, presumably by deleting the words “until 5pm on 5 May 2009 or”.
15 Order 3 sought by the appellant would have varied the injunction so as to permit the Registrar-General to register the transfer to the appellant in accordance with order (d), but otherwise to continue the injunction until that occurred.
16 Variation of the interlocutory order is a matter which arises independently of the final orders disposing of the appeal, in circumstances where a stay of those orders is proposed and should be granted. It is convenient, however, to refer to the notices of motion filed by other interested parties before the terms of the interlocutory injunction are finalised.
17 As already noted, the respondents filed their own notice of motion on 12 June 2009 seeking (in effect) a stay pending disposal of the application for special leave to appeal to the High Court and any appeal, should leave be granted. An order in that form should be made, rather than in the unlimited form proposed in the consent orders.
18 On 11 June 2009 a body which was not party to the initial proceedings, either at trial or on appeal, Walker Corporation Pty Ltd, sought an order that it be joined as a third respondent. It did so for the purpose of seeking the imposition of conditions on the interlocutory injunction, in the following terms:
- “2 An order that the injunction made on 6 April 2009 as extended and varied by orders of this Court made on 5 May and 10 June 2009 be subject to the following conditions:
- (a) that the appellant give an undertaking as to damages, which is supported by security in the form of a bank guarantee provided an Australian authorised deposit-taking institution for the amount of $9 million or such other amount as the Court deems appropriate; and
- (b) that the appellant commence proceedings, if it be so advised, to determine the priority between the constructive trust declared by this Court and the security interests of Walker Corporation in the land identified by Folio Identifier 2/1114604.
- 3 An order that in the event that conditions referred to in paragraph 2(a) and (b) above are not satisfied within 7 days of the making of the order referred to in paragraph 2, the injunction made on 6 April 2009 as extended and varied by orders of this Court made on 5 May and 10 June 2009 be dissolved automatically and without the need of further order of this Court.”
19 An affidavit and submissions filed in support of the order relied upon three documents pursuant to which Walker Corporation asserted an interest in the land which ranked in priority over the interests of the appellant, namely:
(a) a deed entered into around 26 June 2007 by Walker Corporation and the respondents and another company associated with one of the respondents;
(c) a charge dated 26 June 2007 granted by the second respondent to Walker Corporation.(b) an unregistered mortgage dated 26 June 2007 granted by the second respondent to Walker Corporation, and
20 The fact that the second respondent was financed by Walker Corporation was in evidence before Tobias JA and referred to in his Honour’s judgment of 6 April 2009 pursuant to which the interlocutory injunction was granted: see [11]-[15]. His Honour was required to consider the effect on Walker Corporation of an interlocutory injunction, together with the inability of the appellant to provide security having any real commercial value to support an undertaking as to damages: at [18]. His Honour concluded at [30]:
- “Taking all the foregoing matters into account and, in particular, the fact that the order sought will only prevent the registration of Walker’s mortgage or the registration of any other interest in the option land for a period of 4 weeks, in my view the order should be made without the necessity of [the appellant] providing an undertaking as to damages whether secured or not.”
21 Walker Corporation did not suggest that it was unaware of the proceedings, either in this Court or in the Court below. Walker Corporation filed an affidavit in support of its notice of motion in which it stated that a Mr Stephen Archer had been:
(a) a director of the second respondent (Poplar) between 30 October 2007 and 12 February 2009;
(b) a director of the first respondent (John Alexander’s Clubs Pty Ltd (“JACS”)) between 28 March 2006 and 12 February 2009, and
(c) employed by Walker Corporation since 1 July 2008.
22 It may be inferred that Walker Corporation was aware of the proceedings involving Poplar and JACS at all relevant times The hearing before Young CJ in Eq had not commenced until 27 October 2008. The evidence put on by Walker Corporation did not suggest that it was unaware at any material time that the proceedings brought by the appellant challenged any beneficial interest Poplar might claim to have in the land. It may be inferred that Walker Corporation was content to allow Poplar and JACS to defend the proceedings, both in the Equity Division and on appeal. The respondents had common representation at both stages.
23 In the circumstances, it is not necessary to determine whether Walker Corporation has an interest in the land, the nature of the interest (if any) and whether it has priority over the interest of the appellant. Nor is it necessary to determine whether Walker Corporation would now be entitled, given the history of the proceedings only briefly touched on above, to assert that interest against the appellant in separate proceedings. Assuming, without deciding, that this Court would have power to join Walker Corporation as a third respondent in the proceedings, on its own motion filed following entry of judgment, such a power would be discretionary and no sufficient case has been demonstrated for an exercise of the power favourable to Walker Corporation. Accordingly, the first order sought in its notice of motion of 11 June 2009 should be refused.
24 The second order sought is tendentious. It seeks to have the interlocutory injunction dissolved unless the appellant commences proceedings against Walker Corporation and also provides an undertaking as to damages, with security, as a condition of maintaining the current restraining order.
25 In written submissions filed on 19 June 2009 the respondents noted the motion of 11 June 2009 filed by Walker Corporation and noted that they “do not oppose Walker’s Motion”: par 5. The respondents did not seek an order in the form sought by Walker Corporation, nor did they seek actively to support Walker Corporation’s motion. It would be inappropriate to make an order forcing a successful appellant to litigate against a third party as a condition of maintaining the judgment in this Court in its favour. Accordingly, Walker Corporation’s motion of 11 June 2009 should be dismissed. It should pay the appellant’s costs of the motion.
26 On 22 June 2009 Walker Corporation filed written submissions, including an amended notice of motion seeking further orders, including “[a]n order that the declaration in paragraph (c) and the order in paragraph (d) of the orders made by this Court on 3 June 2009 be set aside.” The notice of motion also sought an alternative to orders (c) and (d), designed to protect Walker Corporation’s interests.
27 It is patent that the purpose of these orders was to reopen the appeal so as to achieve a different result. That cannot properly be done at the instigation of a party who was not only not a party to the appeal, but was not a party to the proceedings in the Equity Division. Further, these orders were sought more than 14 days after entry of the orders sought to be varied and could not in any event be entertained: see Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133 at [8]-[16]; Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [7]. As the orders sought in the amended notice of motion go beyond the jurisdiction of this Court, leave to file the amended notice of motion should be refused. The appellant’s costs of the motion should include any costs relating to the proposed amendment to the motion.
28 It is necessary to return to the proposed stay. It is always appropriate for this Court to consider a stay of its own orders pending an application for special leave to appeal to the High Court: see Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; 161 CLR 681 at 684 (Brennan J). There is no doubt that such an order is appropriate in the present case. However, it should not be unlimited as to time, as proposed in the consent orders. Normally one might expect that it should expire upon determination of any proceedings commenced pursuant to special leave. However, the possibility that a third party may wish to continue the order to allow other matters to be litigated requires a brief extension of time to allow Walker Corporation an opportunity to protect further its interests, should it be so advised.
29 Finally, there is a question as to the costs of the present motions between the parties. The respondents’ motion for a stay was not opposed and each party should bear its own costs of that motion. The appellant’s motion was resisted by the respondents and they should pay the appellant’s costs of its motion.
Conclusions
30 I would propose the following orders:
(1) Vary order (d), as made on 3 June 2009 so that the order as varied reads:
- (d) Order that, upon the appellant paying to the second respondent the amount of $6.73 million;
- (i) the second respondent transfer all of its right, title and interest in the land contained in Folio Identifier 2/1114604 to the appellant;
- (ii) if the second respondent shall fail to comply expeditiously with its obligation under par (a), a Registrar of the Court be authorised to execute all documents and do all such things as may be necessary to transfer the second respondent’s right, title and interest in the land in Folio Identifier 2/1114604 to the plaintiff.
(2) Stay the operation of the orders (a)-(d), (f) and (g) made on 3 June 2009 until 14 days after the completion of proceedings sought to be commenced by application for special leave to appeal to the High Court against the decision of this Court of 3 June 2009.
(3) Restrain the Registrar-General of New South Wales from taking any steps to register or permit the registration of an interest over the interest of Poplar Holdings Pty Ltd in the land contained in Folio Identifier 2/1114604 until 14 days after the completion of proceedings commenced by application for special leave to appeal in the High Court against the decision of this Court of 3 June 2009, following the expiration of which period, subject to any further order of a judge of the Supreme Court, the Registrar-General shall be permitted to register only a transfer referred to in order (d), as set out in order (1) above.
(5) Order that the respondents pay the appellant’s costs of its notice of motion of 5 June 2009.(4) Order that Walker Corporation Pty Ltd pay the appellant’s costs of the notice of motion filed by it in these proceedings, such costs to include any costs in relation to the proposed amended notice of motion sought to be filed by Walker Corporation Pty Ltd.
31 MACFARLAN JA: Judgment on this appeal was delivered on 3 June 2009: [2009] NSWCA 114. Defined expressions used in this judgment have the meaning given to them in that earlier judgment.
32 On 5 June 2009 the appellant filed a Notice of Motion seeking orders in somewhat different terms than had been sought by it at the hearing of the appeal and than had been made by the Court. On 11 June 2009 a Notice of Motion was filed by Walker Corporation Pty Ltd (“Walker Corporation”) seeking an order that it be joined as the third respondent in the proceedings and seeking certain variations of the orders made by the Court on 3 June 2009. Subsequently Walker Corporation sought leave to file an Amended Notice of Motion dated 22 June 2009 seeking additional variations of the orders of 3 June 2009.
33 Without opposition from the parties to the appeal or Walker Corporation, the Court directed that the Notices of Motion (including the proposed amended Notice of Motion of Walker Corporation) be determined upon the basis of written submissions to be filed by the parties. These were subsequently filed in accordance with directions made by the Court.
34 It is convenient to deal first with the application by Walker Corporation for an order joining it as a party to the proceedings.
Whether Walker Corporation should be joined as a Party to the Proceedings
35 Walker Corporation’s evidence indicates that it funded the acquisition of Poplar’s interest in the Option Land. It claims that on or about 26 or 27 June 2007, prior to the exercise by Poplar of the option in respect of the subject land, it acquired both fixed and floating security interests in the land from JACS and Poplar. It claims that it has an interest in the Option Land which takes priority over any interest in the land of the appellant.
36 It is not in contest that Walker Corporation was at all times aware of the subject proceedings. In its Written Submissions, it sought to explain as follows why it did not apply earlier to be joined to the proceedings and why it should be joined as a party:
- “20. … There was no need for Walker Corporation to apply to be joined to the proceedings prior to 3 June 2009, as the Court below had made orders which were consistent with Walker Corporation’s interests, and as other remedies were available to the Appellant and to the Court which would not have involved the imposition of a constructive trust. Given that the alleged delay is capable of reasonable explanation, Walker Corporation submits that it should not be deprived of the opportunity to be heard as party to the proceedings. It is Walker Corporation, and not JACS or Poplar, which is the appropriate party to agitate issues relating to the priority interest that it claims and the effect that it should have on this Court’s orders. For these reasons, it is neither too late nor unnecessary for Walker Corporation to be joined as a respondent to the proceedings.”
37 Walker Corporation’s application is made under Part 6 Rule 6.24(1) of the Uniform Civil Procedure Rules 2005. This is in the following terms:
- “If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as party”.
It is also relevant to note that Part 6 Rule 6.23 states that “[p]roceedings are not defeated merely because of the misjoinder or non-joinder of any person as a party to the proceedings”.
38 A person is a necessary party to proceedings, and ought to be joined as a party, if orders made by the Court may directly affect the rights and liabilities of that person (News Ltd v Australian Rugby Football League Ltd [1996] 64 FCR 410 at 523-5; The State of Victoria v Sutton [1998] HCA 56; (1998-1999) 195 CLR 291 at [76-81] per McHugh J). Justice requires that a person in this position have the opportunity to be heard.
39 Subject to one matter which should be clarified and to which I return below, Walker Corporation is not in my view directly affected by the orders which have been made on the appeal, nor would it be by the varied orders sought by the appellant. The appeal has only resolved the issues which arose between the appellant and the respondent. Walker Corporation’s claim that it has an equitable interest in the land ranking in priority to that of the appellant may be pursued by it in separate proceedings against the appellant. In those proceedings it would be open to Walker Corporation to seek interim relief preserving the status quo pending final determination of its claim. Walker Corporation’s joinder to the present proceedings was and is not necessary to determine the disputes between the appellant and the respondents.
40 If there had been reason, for convenience rather than necessity, to have Walker Corporation’s claim determined together with resolution of the disputes between the appellant and the respondents, it is far too late for Walker Corporation now to be joined. It was not a party at first instance, and its claim should not be entertained for the first time on appeal. Even as an applicant in the appeal, it failed to apply at an earlier time, apparently in the expectation that the outcome would not be the imposition of a constructive trust. That its expectation has been disappointed is not a reason for allowing it to participate. As Walker Corporation continues not to be a party to the proceedings it is not appropriate to consider its claims for variations of the orders made in the proceedings.
41 As the proposed Amended Notice of Motion was the subject of submissions, leave to file it should be granted. However, because Walker Corporation’s application for joinder fails, it should be dismissed with costs.
42 The matter to which I said that I would return relates to an injunction originally granted by Tobias JA on 6 April 2009 in the following terms:
- “The Registrar-General of New South Wales be restrained from taking any steps to register or permit the registration of an interest over the interest of Poplar Holdings in the Property at Folio Identifier 2/1114604 until 5pm on 5 May 2009 or until further order of the Court.”
43 The injunction was subsequently extended, most recently by me on 10 June 2009 when I ordered that it be extended until further order.
44 To ensure, if a court holds that that is appropriate, that Walker Corporation Pty Ltd (or indeed any third party) is able to obtain registration of an interest in the land in priority to a registered interest which the appellant may acquire pursuant to the orders made on the appeal on 3 June 2009, it should be clear that this injunction is subject to any different order that may be made by the Supreme Court of New South Wales in any other proceedings to which the appellant and respondents are parties.
Variation of Orders made on 3 June 2009
45 I turn to consider the issues between the appellant and the respondents as to variation of the orders made on 3 June 2009.
46 The first variation which the appellant seeks is the deletion of the words “on or before the date 3 months from the date of these orders” in order (d) of the orders of 3 June 2009. It recognises that the order was made in the terms that it sought at the hearing but says that the making by Walker Corporation of a claim to a prior interest and the prospect of consequent further Supreme Court proceedings raises a doubt as to whether the appellant can meet the 3 month limit.
47 The respondents oppose the making of this change upon the basis that the appellant should be confined to the orders which it sought at the hearing, particularly in the context of the respondents having made an application to the High Court for special leave to appeal. The variation is however of a limited nature and arises out of changed circumstances. In my view, it is appropriate that that variation be made. The variation should be accompanied by the insertion in the order of the words “as expeditiously as possible” as these appeared in the form of order sought in the appellant’s Written Submissions in chief and were the subject of a submission by the respondents. The only concern expressed by the respondents in relation to these words was that the appellant might seek a transfer prior to the determination of the respondent’s application to the High Court for special leave to appeal. That submission has been overtaken by the agreement of the parties, to which I refer below, that the relevant order be stayed until further order.
48 The second variation sought by the appellant to the orders of 3 June 2009 is the addition of an order that:
- “In the event that the [respondents] do not comply with order (d) of the orders made on 3 June 2009, the Registrar of the Court be empowered to execute all documents and do all such things as may be necessary to transfer the [respondents’] right title and interest in the land contained in Folio Identifier 2/1114604 as expeditiously as possible”.
49 The respondents oppose the making of this order upon the same grounds that it opposes the making of the variation to order (d). In my view, a further order of the type sought by the appellant is an appropriate one to ensure achievement of the objective sought to be achieved by the Court’s orders of 3 June 2009. The order sought should accordingly be made, although the words “as expeditiously as possible” should be deleted from the appellant’s draft as unnecessary.
Stay pending Application for Special Leave to Appeal
50 On 2 July 2009, the appellant and the respondent submitted consent orders. The first provided for a stay of orders (d) and (e) made on 3 June 2009. The second related to suspension of the 3 month period referred to in order (d) and the third granted liberty to apply. The second order sought is no longer relevant in light of my view that it is appropriate that order (d) be varied by deletion of the reference to the 3 month period. Further, it is unnecessary to grant a stay in respect of order (e) as this was simply an order granting liberty to apply. The result is that, by consent, order (d) made on 3 June 2009 will be stayed until further order, with the grant of liberty to apply to enable variation or discharge of that stay. As this stay order should not remain open ended, the parties should attempt to agree on a form of order which will bring the stay to an end at a defined point of time in the future. If they can agree, they should submit signed short minutes of order. If they cannot agree, the appellant should within 14 days of this judgment relist the matter for argument on the point.
Costs
51 I have referred to the costs of the Notices of Motion of Walker Corporation above.
52 The appellant’s costs of its Notice of Motion of 5 June 2009 should in my view be paid by the respondent. Although the appellant did not seek the varied orders at the hearing of the appeal, the need for written argument about them arose out of the respondent’s opposition. Accordingly, it is appropriate that the respondent pay the appellant’s costs of the Motion.
Orders
53 I propose the following orders:
(1) Vary Order (d) made on 3 June 2009 by deleting the words “on or before the date 3 months from the date of these orders” and replacing them with the words “as expeditiously as possible”.
(2) Order that in the event that the second respondent does not comply with order 4 as entered on 12 June 2009 and as subsequently varied, a Registrar of the Court is empowered to execute all documents and do all things as may be necessary to transfer to the appellant the second respondent’s right, title and interest in the land contained in Folio Identifier 2/1114604.
(3) Order that the words “subject to any different order that may be made by the Supreme Court of New South Wales in any other proceedings to which the appellant and respondents are parties” be added to the end of Order 1 made by Tobias JA on 6 April 2009, as subsequently extended.
(4) Grant leave to Walker Corporation Pty Ltd to file in court the Amended Notice of Motion dated 22 June 2009 provided by it to the Court.
(5) Dismiss the Amended Notice of Motion of Walker Corporation Pty Ltd and order Walker Corporation Pty Ltd to pay the costs of the appellant of the Amended Notice of Motion (including its costs of the Notice of Motion which it superseded).
(6) Order that the respondents pay the appellant’s costs of its Notice of Motion dated 5 June 2009.
(7) Stay, until further order, Order (d) made on 3 June 2009 and as varied by Order (1) above.
(8) Liberty to any party to apply upon three days notice to the other parties for discharge or variation of Order (7) above.
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