HYUNDAI CORPORATION v LIFTRONIC PTY LIMITED [1993] NSWCA 142

HYUNDAI CORPORATION v LIFTRONIC PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, MEAGHER JA and Cripps JA 21 June, 25 June 1993

[1993] NSWCA 142

Priestley JA, Meagher JA and Cripps JA. Before the court are summonses by three defendants for leave to appeal against orders made against them by Cole J in two proceedings with which he has been dealing together. Also before the court are applications by two of the three defendants for stays of interim orders for payment in the sum of $2,262,182 made against them by Cole J on 25 May 1993. The stays were sought pending the outcome of their applications for leave to appeal. The other defendant is not seeking a stay of the order against it, which was for payment of an amount of $1,831,432. That order had been made on 2 April 1993.

Cole J delivered detailed reasons on 25 May for the orders he then made. This court's decision is made by reference to the situation described in those reasons, and we say no more about the facts of the case than necessary to indicate why we make the orders which follow.

The proceedings in which Cole J's orders were made were brought by Liftronic Pty Limited ('Liftronic') against Hyundai Elevator Co Limited('HE'), Hyundai Corporation ("HC') and Hyundai Australia Pty Limited ('HA'). HC is the parent company of HE and HA; it is an extremely large company with a turnover of many billions of dollars per annum. Its headquarters are in Korea.

Liftronic's proceedings against each of the three defendants were on different bases, although all arose out of the one set of transactions.

The defendant against which Cole J made the order of 2 April 1993 was HE. The order was that the payment be made to Liftronic on or before 16 April 1993. Counsel for the defendants did not resist the making of that order against HE, except in regard to the time permitted for payment, but did resist any orders being made against the other two defendants.

The amount ordered to be paid was not paid.

On 27 April 1993 HE filed a notice of appeal raising for the first time an assertion that the court had no jurisdiction to direct interim judgment. Later a summons for leave to appeal was filed.

The defendants against which Cole J made the interim orders for payment on 25 May 1993 and against which they are seeking stays were HC and HA. Their notice of motion seeking the stays was filed on 31 May 1993.

On 8 June 1993 Kirby P ordered that the order for interim payment of 25 May 1993 be stayed as against HC and HA until 21 June 1993 on condition that HC and HA jointly and severally lodge $2,274,026 in an account to be opened in the name of a solicitor for Liftronic and a solicitor for HC and HA as trustees, such sum and any interest to abide the further order of the court.

The condition was fulfilled. The money is now held on the stipulated trust.

On 21 June 1993 the applications for leave to appeal and the application for the stays came on for hearing before us.

2 UNREPORTED JUDGMENTS

Counsel for HE, HC and HA explained the situation frankly. He said that on any view of Liftronic's proceedings against the three Hyundai companies it would in the end remain entitled to judgment at least against HE for an amount which, in round figures, would be at least $900,000. That judgment could not be enforced against HE in Australia. Counsel submitted that HC and HA had good prospects of success on appeal. Counsel said that Liftronic would consent to leave to appeal being granted and asked that the stays granted by Kirby P be continued, if leave was granted, pending the outcome of the appeals of HC and HA. He submitted that it was enough for the stays to be continued that HC and HA had paid the sum of $2,262,182 into the trust account proposed by Kirby P in his order of 31 May 1993. He mentioned that HC and HA resisted a suggestion which he understood would be made by Liftronic that a condition of any further stay of the interim order be the payment to Liftronic of $488,000. The resistance was based on a contention that should that amount be paid and should HC and HA succeed on appeal they might not be able to recover the amount so paid.

There is evidence before the court that Liftronic's position is such that it would be likely to be able to repay any such sum if called upon to do so, although it was contended also for Liftronic that the prospects of both HC and HA succeeding on appeal were negligible.

The fact that HE is at the very least certainly liable to Liftronic for at least $900,000 apparently emerged before Cole J. Counsel for the Hyundai companies referred to the matter in making the point that money coming from HC and HA should not be used substantially to satisfy a judgment debt of HE, a different company.

However, it is HC and HA who are applying for stays. At the moment there are interim judgments against them and they must persuade the court that there is good reason for staying execution of those judgments. Cole J, inhis reasons of 25 May 1993 noted that in a document filed in the proceedings on 26 February 1993 which was adopted before him by the then counsel for all three defendants it was stated that HC is the parent of HE.

In the circumstances the court is of the view that the stay should only be continued upon compliance by HC and HA with a condition, additional to those stated in the President's order of 8 June 1993, that from the sum already paid into the trust account referred to in that order there be paid out within seven days from the date of this order the sum of $488,000 to Liftronic.

Liftronic indicated it supported the granting of leave to appeal on the practical basis that it appeared that there would be appeals in any event by the three defendants when Cole J's interim orders became final. They are not yet final because other matters in the proceedings are outstanding but the decision of the other matters will not have any effect on the amounts ordered to be paid on the interim basis as those other matters deal with separate heads of claim. Liftronic's attitude to the leave applications seems sensible in the circumstances. The applications for leave to appeal by HE, HC and HA are granted.

It also seems sensible to the court in the particular circumstances to grant expedition of the appeals.

The court was told however that the remaining matters for decision at first instance have been stood over for hearing on 3 August next. Because of that the court at this stage simply orders expedition of the appeals. Because it may be desirable, if there are to be appeals from the final orders which result from the hearings scheduled for 3 August, that they be heard together with the appeals now ordered to be expedited, the court reserves liberty to apply in the present

WRUNDAI CORPORATION v LIFTRONIC PTY LIMITED (Priestley JA, Meagher JA an@ Cripps JA)

applications by any party upon two days notice to the others. HC and HA are to pay Liftronic's costs of the application for stays until and includingtoday; the costs of the applications for leave to appeal should be costs in the appeals.

Orders accordingly. Counsel for the appellants: D. GRIEVE QC Solicitors for the appellants: GOLDSMITHS SOLICITORS Counsel for the respondent: R.B. MACFARLAN QC / D.A. CASPERSONN Solicitors for the respondent: NEWMAN PSALTIS and CO