SC2135

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO.62 OF 2021

BETWEEN:
YUMEI NI CRAGNOLINI as a Director of L & A ILB (PNG) LTD
(In Liquidation)
Appellant

AND:
NOSRIDA LTD
First Respondent

AND:
ANDREW PINI of PINI ACCOUNTANTS & ADVISORS as Court appointed Liquidator of L & A ILB (PNG) LTD
Second Respondent

AND:
L & A ILB (PNG) LTD (In Liquidation)
Third Respondent

Waigani: David J
2021: 5th & 14th August
SUPREME COURT PRACTICE AND PROCEDURE – application for stay – exercise of discretion – principles for exercise of discretion - Supreme Court Act, Section 19.
SUPREME COURT PRACTICE AND PROCEDURE – application for restraining order pending appeal – Supreme Court Act, Section 5(1)(b), Supreme Court Rules, Order 3 Rule 2(b).

Cases Cited:
Papua New Guinea Cases

Kitogara Holdings Pty Ltd v National Capital District Interim Commission & Ors [1988-89] PNGLR 346
McHardy v Prosec Security and Communication Ltd [2000] SC 646
Felix Bakani v Rodney Daipo (2002) SC699
Kenn Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886
Department of Works v In The Matter of International Construction (PNG) Ltd (In Liquidation) (2009) SC1051
Joshua Kalinoe v Paul Paraka; Hon Biri Kimisopa v Paul Paraka (2010) SC1024
Solomon Tato v Samson Akunai (2016) SC1625
Yii Ann Hii v the Deputy Commissioner of Taxation (2017) SC1626

Overseas case cited:

Re Majory (1965) 1 Ch 600

Treatise Cited

Sir Salamo Injia (et al), Civil Procedure in the National Court, Papua New Guinea, Colorcraft Ltd, Hong Kong, 2016

Counsel:

Peter Lowing, for the Appellant
Dan Kakaraya, for the First Respondent
Tumun Kuma, for the Second Respondent
Ian Molloy with Anthony Roden-Paru, for the Third Respondent

RULING

14 August, 2021

1. 	DAVID J:	INTRODUCTION: Two applications were brought before me for hearing and determination.  One was an Application for Stay filed on 23 June 2021 pursuant to which the Appellant moved for; a stay of the orders made by the National Court on 17 June 2021 in proceedings MP 8 of 2020: In the matter of the Companies Act 1997 and In the matter of L & A ILB (PNG) Ltd relying on Section 19 of the Supreme Court Act and Section 155(4) of the Constitution; and for an interlocutory injunctive order restraining the First and Second Respondents including their respective employees, servants and agents from conducting the liquidation of the company, L & A ILB (PNG) Ltd, now the Third Respondent, and doing any related activity until determination of the appeal relying on Section 5(1)(b) of the Supreme Court Act and Order 3 Rule 2(b) of the Supreme Court Rules.  The other was an application by the Third Respondent to be added as a party to the proceedings as the Third Respondent under Order 11 Rules 2 and 11 of the Supreme Court Rules which was moved pursuant to an Amended Application to be Added as a Party filed on 7 July 2021.
2.	The application by the Third Respondent was not contested, the parties agreeing to it being added as a party to the proceedings as the Third Respondent.  I ordered accordingly.  
3.	The applications for stay and an interlocutory injunctive order were contested.
EVIDENCE
4.	The Appellant relies on and reads the following affidavits:
	1.	Affidavit of Peter Lowing sworn and filed on 23 June 2021 (Doc 3);
	2.	Affidavit of Peter Lowing sworn and filed on 23 June 2021 (Doc 5);
	3.	Affidavit of Peter Lowing sworn and filed on 25 June 2021 (Doc 8);
	4.	Affidavit of Priscilla Andrew sworn and filed on 23 June 2021 (Doc 4);
	5.	Affidavit of Priscilla Andrew sworn and filed on 24 June 2021 (Doc 6);
	6.	Affidavit of Yumei Ni Cragnolini sworn and filed on 29 June 2021 and filed on 30 June 2021 (Doc 9);
	7.	Affidavit of Yumei Ni Cragnolini sworn and filed on 6 July 2021 (Doc 22);
	8.	Affidavit of Brad Hawkins sworn and filed on 6 July 2021 (Doc 23);
	9.	Affidavit of Mai Ila sworn on 3August 2021 and handed up at the hearing); and
	10.	Undertaking as to Damages signed by the appellant dated 23 June 2021. 
5.	No objection was raised by the respondents for the Appellant to rely on other affidavits not specified in the Application for Stay.  
6.	The First Respondent relies on and reads the following affidavits:
	1.	Affidavit of Dan Kakaraya sworn and filed on 30 June 2021 (Doc 16);
	2.	Affidavit of Kenneth Hugh Rohan sworn on 8 July 2021 and filed on 9 July 2021 (Doc 28);
	3.	Affidavit of Peter Lowing sworn and filed on 23 June 2021 (Doc 3);
	4.	Affidavit of Peter Lowing sworn and filed on 23 June 2021 (Doc 5);
	5.	Affidavit of Priscilla Andrew sworn and filed on 23 June 2021 (Doc 4);
	6.	Affidavit of Yumei Ni Cragnolini sworn and filed on 29 June 2021 and filed on 30 June 2021 (Doc 9); and
	7.	Affidavit of Brad Hawkins sworn on 21 July 2021 and filed on 21 July 2021 (Doc 31) and 22 July 2021 (Doc 32).
7.	The Second Respondent relies on and reads his own affidavit sworn and filed on 16 July 2021 (Doc 30).
8.	The Third Respondent relies on and reads the following affidavits:
	1.	Affidavit of Anthony Roden-Paru sworn and filed on 21 June 2021 (Doc 12);
	2.	Affidavit of Dan Kakaraya sworn and filed on 30 June 2021 (Doc 16);
	3.	Affidavit of Kenneth Hugh Rohan sworn on 8 July 2021 and filed on 9 July 2021 (Doc 28); and
	4.	Affidavit of Andrew Pini sworn and filed on 16 July 2021 (Doc 30).
9.	I have considered the evidence.
BRIEF BACKGROUND
10.	The First Respondent is a company registered under the Companies Act.
11.	The Second Respondent is a Certified Practising Accountant in Papua New Guinea and a licensed and registered Public Accountant, Company Auditor and Liquidator in Papua New Guinea. 
12.	The Third Respondent was incorporated on 6 October 1989 and has been carrying on a construction business in Port Moresby, National Capital District.  The Appellant states that it has a substantial interest indirectly and directly as a shareholder and director and the other shareholder and director is her erstwhile husband Sir Luciano Cragnolini. On 12 April 2021 the Appellant commenced proceedings in the National Court against the Third Respondent, Sir Luciano Cragnolini and Harriet Kokiva, Acting Registrar of Companies in OS No.8 of 2021 for alleged illegal acquisition or redemption of her share in the Third Respondent.    
13.	On 17 June 2020, the First Respondent filed a petition in the National Court to liquidate the Third Respondent (the petition) alleging that:
	1.	In February and March 2019, it provided goods and services to the Third Respondent in the sum of K77,000.00 (the debt) detailed in Invoice No.00107506 dated 20 February 2019 for K24,200.00, Invoice No.00107573 dated 6 March 2019 for K24,200.00, and Invoice No.00107588 for K28,600.00;   
2.	The Third Respondent had failed to comply with a Creditor’s Statutory Demand for Payment of Debt dated 24 April 2020 (Statutory Demand) demanding payment of the debt within one month of service of the Statutory Demand; and
3.	The Third Respondent was unable to pay the debt as they fell due in the ordinary course of business.    
14.	On 17 June 2021, the petition was heard by the National Court and made orders placing the Third Respondent into liquidation and appointed the Second Respondent as liquidator. 
15.	By Notice of Appeal filed on 23 June 2021, the Appellant instituted this appeal.  A Supplementary Notice of Appeal was filed on 2 July 2021.
APPLICATION FOR STAY 
16.	The Third Respondent took issue with the competency of the Application for Stay in its written submissions for want of compliance with Order 13 Rule 15 of the Supreme Court Rules which requires that applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders sought.  This objection was not pursued at the hearing so I consider it abandoned.

17.	The application for stay is made pursuant to Section 19 of the Supreme Court Act.  The Appellant also relies on Section 155(4) of the Constitution, but the proper jurisdictional basis for an application for stay is Section 19 of the Supreme Court Act.

18.	The principles applicable on a grant or refusal of stay application are well established in this jurisdiction and they are set out in McHardy v Prosec Security and Communication Ltd [2000] SC 646 (McHardy principles). There, the Supreme Court held that the powers of the Court to grant or refuse a stay application pending appeal is discretionary. The discretion available to a Judge of the Court is very broad:  Joshua Kalinoe v Paul Paraka; Hon Biri Kimisopa v Paul Paraka (2010) SC1024.  The requirements of justice demand that the exercise of discretion by the Court is based on proper principles and on proper grounds. That is not exhaustive and the circumstances vary from case to case. It is not necessary for the applicant to demonstrate special or exceptional circumstances. For a stay to be granted, it is sufficient that an applicant shows some reasons depending on the merits and circumstances of his particular case to warrant the exercise of discretion in his favour. The onus is on an applicant to persuade the Court as to why it should intervene and stall enforcement, implementation or the operation of the judgment of the trial court:  Yii Ann Hii v the Deputy Commissioner of Taxation (2017) SC1626.  However, the starting point is that a successful party is entitled to the fruits of the judgment. 

19.	The McHardy principles that may be considered are:

1.	Whether leave to appeal is required and whether it has been obtained;
2.	Whether there has been any delay in making the application.
3.	Possible hardship, inconvenience or prejudice to either party.
4.	The nature of the judgement sought to be stayed.
5.	The financial ability of the applicant.
6.	Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal.
7.	Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.
8.	The overall interest of justice.
9.	Balance of convenience.
10.	Whether damages would be sufficient remedy.

20.	The circumstances of a particular case may warrant greater or less or even no weight to be given to a particular factor in the exercise of discretion: Solomon Tato v Samson Akunai (2016) SC1625.   

21.	I have considered the submissions made by counsel representing the parties on the application of the McHardy principles to the circumstances of the present case and I apply them in the following manner.

Leave to appeal

22.	According to the Notice of Appeal and Supplementary Notice of Appeal, the appeal lies without leave pursuant to Section 14(1)(a) and (b) of the Supreme Court Act in that it arises from a final decision/order of the National Court and also raises questions of law and questions of mixed fact and law.  Mr Lowing of counsel for the Appellant reaffirms the Appellant’s position that leave is not required and the Appellant has correctly filed this appeal.  On the other hand, Messrs Kakaraya and Kuma of counsel for the First and Second Respondents respectively contend that the Appellant has no right to lodge an appeal without first obtaining leave because she was not a party to the National Court proceedings.  They argue that as leave was required and not obtained, the appeal filed was in breach of Section 17 of the Supreme Court Act and therefore incompetent. The Third Respondent has not stated clearly its position on this matter.    

23.	By majority judgment in Kitogara Holdings Pty Ltd v National Capital District Interim Commission & Ors [1988-89] PNGLR 346, the Supreme Court (Kapi DCJ and Woods J with Los J not deciding) held that Section 17 of the Supreme Court Act operates so as to provide a right of appeal to any “person” whose interests are affected by or who is aggrieved by the order of the court and who might have been joined as a party to the proceedings.  The Supreme Court in Kenn Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886 (Kapi C J, Davani & Lay JJ) having considered Kitogara Holdings Pty Ltd v National Capital District Interim Commission & Ors [1988-89] PNGLR 346 and other cases, both local and overseas, held that a person directly affected by an order of the National Court does not require leave to appeal solely because he was not a party to those proceedings.  At paragraphs 41 and 42 of the judgement the Court said:
  
“41.	Parliament granted the right of appeal to the people of Papua New Guinea by the Supreme Court Act 1975. The Act provides in s.14 for the occasions when leave to appeal is required. We do not consider that there is any justification to further modify, cut down, or reduce that right by a common law rule.  We consider such a rule could not have been adopted by Constitution schedule 2 .2, if it was it has been abolished, because the rule is inconsistent with the right of appeal contained in s.4, qualified only by s.14 and s.17, granted by the Supreme Court Act.

42.	We conclude that the requirement for leave to be sought by a non party to appeal from a decision of the National Court is not the law of Papua New Guinea.  Leave is not required to appeal solely because the appellant was not a party in the proceedings from which the appeal is brought.”

24.	This issue has been raised by the First Respondent in its Notice of Objection to Competency filed on 30 June 2021, Amended Notice of Objection to Competency filed on 2 July 2021 and Further Amended Notice of Objection to Competency filed on 7 July 2021.  This is a live issue that needs to be determined by the full Court, so I am reluctant to make any definitive finding on the issue other than state what I have already stated.  

 25.	The respondents also argue that the appropriate procedure the Appellant ought to have taken to challenge the decision and orders of the National Court was to apply to the National Court to set aside or vary the orders made in her absence.  It was argued that this was permitted by Rule 2 of the Companies Rules which allowed the general rules of the National Court to apply including Order 12 Rule 8.

26.	Rule 2 states:
	
“2.	General Rules and practice of National Court to apply.

Subject to the Companies Act and these Rules, the Rules of Court of the National Court and the general practice of that Court, including the course of procedure and practice in chambers, apply in relation to proceedings to which these Rules relate as far as is practicable.”

27.	Clearly, Rule 2 expressly provides that the National Court Rules and practice and procedure of the National Court apply to proceedings instituted in the National Court to which the Companies Rules relate as far as practicable. However, the application of the National Court Rules and practice of the National Court is subject to the Companies Act and the Companies Rules: Department of Works v In The Matter of International Construction (PNG) Ltd (In Liquidation) (2009) SC1051.

28.	No proper assistance was received from counsel as to the application of the various sub-rules under Order 12 Rule 8.

29.	Order 12 Rule 8(1) of the National Court Rules would not be a proper basis to file an application to set aside simply because the time for the entry of the orders was abridged to take effect immediately.

30.	It seems to me however that Order 12 Rule 8(2) and (3) of the National Court Rules applies to a party who can apply to set aside an order in whose absence the order was made:  see Sir Salamo Injia (et al), Civil Procedure in the National Court, Papua New Guinea, Colorcraft Ltd, Hong Kong, 2016 at 254.  It is an undisputed fact that the Appellant was not a party to the National Court proceedings. 

31.	The orders sought to be stayed may not fall within the class of orders covered by Order 12 Rule 8(4).  

32.	Order 12 Rule 8(5) may apply in a situation like an application under Section 300 of the Companies Act which I will briefly address below.

33.	The Third Respondent also argues that the Appellant ought to have gone back to the National Court to challenge the winding up order under Section 300 of the Companies Act which gives the National Court wide powers to terminate a liquidation.  That provision states:

“S.300. Court may terminate liquidation.

(1)	The Court may, at any time after the appointment of a liquidator of a company, if it is satisfied that it is just and equitable to do so, make an order terminating the liquidation of the company.
(2)	An application under this section may be made by the liquidator, or a director or shareholder of the company, or any other entitled person, or a creditor of the company, or the Registrar.
(3)	The Court may require the liquidator of the company to furnish a report to the Court with respect to any facts or matters relevant to the application.
(4)	The Court may, on making an order under Subsection (1), or at any time thereafter, make such other order as it thinks fit in connection with the termination of the liquidation.
(5)	Where the Court makes an order under this section, the person who applied for the order shall, within one month after the order was made, submit a certified copy of the order to the Registrar for registration.
(6)	Where the Court makes an order under Subsection (1) the company ceases to be in liquidation and the liquidator ceases to hold office with effect on and from the making of the order or such other date as may be specified in the order.
(7)	Every person who fails to comply with Subsection (5) commits an offence and is liable on conviction to the penalty set out in Section 413(2).”

34.	Mr. Molloy for the Third Respondent suggests that the proper approach is for the Appellant to engage the National Court by bringing an application under Section 300 of the Companies Act to terminate the liquidation.

35.	As I have indicated above, on 12 April 2021 the Appellant commenced proceedings in the National Court against the Third Respondent, Sir Luciano Cragnolini and Harriet Kokiva, Acting Registrar of Companies in OS No.8 of 2021 for alleged illegal acquisition or redemption of her share in the Third Respondent.   It is my view that in light of those proceedings, I think it is a matter that can be ventilated at the hearing of the objection to competency of the appeal.  

36.	The First and Second Respondents also argue that the Appellant lacks legal capacity or without a Board Resolution of the Third Respondent to institute these proceedings does not have any right to appeal the order for the winding up of the Third Respondent.  For the foregoing reasons which I adopt, I reject this argument.  
 
37.	Given this, I will treat this as a neutral factor as it is a matter pending determination by the Supreme Court.

Delay

38	In Felix Bakani v Rodney Daipo (2002) SC699, the full Court stated, among others, that:

 “A person who is aggrieved by a decision of the National Court who intends to appeal against that decision must act promptly in pursuing and preserving his appeal rights…. An appellant or his lawyer who wastes time and acts on the last day or on the 11th hour does so at his own peril and has only itself to blame.  Time is a priced commodity here and it is of essence.  Time runs from the day after the decision is made.  The clock cannot be rolled back, so to speak, to accommodate the interest of lax appellants or their lawyers.

39.	I am satisfied that the Appellant has not delayed this application. The National Court’s decision and orders were made on 17 June 2021 and the Appellant filed her Notice of Appeal and the Application for Stay on 23 June 2021.  This factor favours the Appellant.

Possible hardship, inconvenience or prejudice to either party

40.	The Appellant contends that if the application for stay is not granted, she stands to suffer grave hardship, inconvenience and prejudice as a result of the orders of the National Court. This, she states, is principally because the Third Respondent is not insolvent:  see affidavits of the Appellant (Doc 22) and of Brad Hawkins (Docs 23 and 31).  She states that there will be no prejudice to the First and Second Respondents compared to what she and the Third Respondent will suffer if the application for stay is not granted.  
41.	However, if the Court grants the application for stay, it will not cause inconvenience to the Second Respondent who has not commenced the liquidation due to the fact that Australia & New Zealand Banking Group (PNG) Limited (ANZ) is a secured creditor over the assets of the Third Respondent and may appoint a receiver over the Third Respondent:  see annexures F1 and F2 of Priscilla Andrew’s affidavit sworn and filed on 23 June 2021 (Doc 4).  The Appellant argues that the Second Respondent would have no say in a receivership which makes the order sought to be stayed a nugatory and pointless order.  I was referred to paragraph 11 of Mr. Lowing’s affidavit sworn on 23 June 2021 (Doc 3) where he deposes that he has had discussions with a Mr Matthew Rutter of ANZ who supervises the L & A Group of Companies and he has on numerous occasions said “if a liquidator is appointed to ILB or any other company in the L & A Group, ANZ will put receivers into all the interlocking companies in the group.”  A letter received by the Appellant from Allens Linklaters dated 23 June 2021 regarding the ANZ facilities and a demand to pay an amount owing by L & A Group of Companies in excess of K37 million is annexed to the affidavit of Priscilla Andrew sworn on 24 June 2021(Doc 6) as annexure A.

42.	The Appellant also argues that if the application for stay is granted, it will not prejudice creditors (both secured and unsecured) of the Third Respondent.  She states that she is able to pay the debt owing to the First Respondent and has offered to do so, but it has rejected the offer for dubious reasons:  see annexure A, Mai Ila’s affidavit.  

43.	The First and Second Respondents argue that the Appellant has failed to produce evidence suggesting that the Third Respondent is insolvent and has the capacity to pay its creditors.

44.	As I have mentioned already, Mr. Molloy for the Third Respondent suggests that the proper approach is for the Appellant to engage the National Court by bringing an application under Section 300 of the Companies Act to terminate the liquidation.  He also argues that in this way the National Court can properly deal with all issues and hear from all interested parties and make a fair and equitable decision.   

45.	The suggestion by Mr Molloy is a way forward in resolving the dispute between the parties, but as I have said already, the matter can be raised at the hearing of the objection to competency of the appeal.  

46.	I accept the Appellant’s submissions.  This factor favours the Appellant.  

Nature of judgment

47.	The Appellant is seeking an order to stay the orders of the National Court made on 17 June 2021 which placed the Third Respondent into liquidation and appointed the Second Respondent as the Liquidator.  The Appellant states that the petition, on the evidence, was an abuse of the Court process. The First and Second Respondents contend that the orders of the National Court sought to be stayed were made after a careful assessment of the evidence before it that demonstrated that the Third Respondent was unable to pay the debt owed to the First Respondent as they fell due in the ordinary course of business.  I will treat this as a neutral factor and make no definitive finding.

Financial ability of applicant

48.	The Appellant submits that it is beyond doubt that the Third Respondent is in a good financial position and its sole asset, Allotment 4 Section 36 Boroko, NCD is worth about K42 million. It is argued that the Third Respondent’s financial position was not the main reason behind the First Respondent’s petition to liquidate it. 

49.	The First and Second Respondents contend that the Appellant has not provided any evidence of her financial capacity to pay debts as and when become due to in the ordinary course of business. It was argued that apart from about K37 million owed to ANZ, the Second Respondent’s affidavit shows that the Appellant owes creditors in excess of K63 million.

50.	I have considered the Third Respondent’s Annual Returns for 2017, 2019 and 2020 and Balance Sheet for 2016 (annexures E1, E2, E3 and E4 of Priscilla Andrew’s affidavit sworn on 23 June 2021 (Doc 4) ) and  the Third Respondents financial statement and property valuation report of the Third Respondent’s  only asset (Allotment 4 Section 36 Boroko, NCD worth about K42 million).  I have also considered the evidence of the Appellant (Doc 22) and Brad Hawkins.  They demonstrate that the Third Respondent is solvent.  

51.	The debt owed to ANZ is owed by the L & A Group of Companies:  see annexure A of the affidavit of Priscilla Andrew sworn on 24 June 2021 (Doc 6) and Brad Hawkins’ affidavit (Doc 31).

52.	The Appellant has filed an undertaking as to damages.

53.	It is not true to state that no evidence at all has been produced to demonstrate the financial ability of the Appellant.   I think there is some evidence showing that.  In the circumstances, I will consider this factor in favour of the appellant. 

Preliminary assessment on whether the applicant has an arguable case

54.	The Appellant submits that there is more than an arguable case based on her grounds of appeal in the Notice of Appeal.  It is argued that apart from the procedural errors, there is ample evidence that the whole circumstances surrounding the petition is an egregious abuse of the process of the Court.

55.	The respondents contend that the Appellant does not have an arguable case as at the time the orders were made for the winding up of the Third Respondent, the Third Respondent was unable to pay its debts worth more than K63 million as in the ordinary course of business.  The First and Second Respondents also contend that the First Respondent complied with the Companies Rules on winding up proceedings which was validated by the issuance of a Certificate of Compliance by the Registrar.   The Third Respondent argues that not a single ground of appeal has a good and realistic prospect of success.

56.	I have stated already that the debt owed to ANZ is by the L & A Group of Companies.  The debt allegedly owed by the Third Respondent in the sum of about K63 million is disputed:  see para 11 of Brad Hawkins’ affidavit (Doc 31).

57.	I have considered Re Majory (1965) 1 Ch 600 where it was held that:

“…. Court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.”  

58.	I have considered the totality of the evidence and the circumstances surrounding the filing of the petition by the First Respondent for the winding up of the Third Respondent.  A matrimonial dispute between the Appellant and her erstwhile husband Sir Luciano Cragnolini, it appears, has had a lot to do with the liquidation of the Third Respondent.  I generally concur with the Appellant’s submissions.  I am satisfied that the appellant has an arguable case.  This factor favours the appellant. 

Error on the face of the record of the judgment

59.	The Appellant contends that there are apparent errors of law or procedure on the face of the record of the judgment and that is demonstrated by Grounds 3.1 and 3.2(a) of the appeal.

60.	The First and Second Respondents disagree.  They argue that the necessary statutory requirements for the filing of winding up proceedings were complied with commencing from the issue of a statutory demand to granting of the orders of the National Court under dispute.

61.	 I am satisfied that there is on the face of the record an indication of an apparent error of law or procedure.  It is arguable.  This factor favours the appellant.

Overall interest of justice

62.	Based on my earlier observations that favour the appellant which I adopt and apply here, I am satisfied that the overall interest of justice favours the grant of the stay sought.  This factor favours the Appellant.  

Balance of convenience

63.	Again, based on my earlier observations that favour the Appellant which I adopt and apply here, I am satisfied that the balance of convenience favours the grant of the stay sought.  This factor favours the appellant.  

Damages as sufficient remedy

64.	I accept the Appellant’s submissions that if the appeal is successful and there is no stay of the orders made by the National Court, damages would not be a sufficient remedy. There is in evidence a letter of demand issued for and on behalf of ANZ by its lawyers Allens Linklaters demanding payment of a debt owing by L & A Group of Companies, of which the Third Respondent is a part, in excess of K37 million under loan facilities provided to the Group.  This factor favours the Appellant. 

Conclusion

65.	In summary, most factors favour the grant of the stay sought.  Given this, I will exercise my discretion in favour of granting the Appellant’s application for stay.
APPLICATION FOR RESTRAINING ORDER
66.	I think the natural consequence of the grant of the application for stay warrants a grant of the application for an interlocutory injunctive order sought bearing in mind the relevant principles for the grant of such orders. The reasons favouring the grant of the application for stay when applied here will favour the exercise of my discretion in favour of the Appellant.   
ORDERS
67.	The formal orders of the Court are:
1.	The application for the stay sought is granted.
2.	The application for interlocutory injunctive order is granted.
3.	Costs of an incidental to the application shall be in the cause of the substantive appeal.
_____________________________________________________________
Leahy Lewin Lowing Sullivan:	Lawyers for the Appellant
Warner Shand: Lawyers for the First Respondent	
Bradshaw: Lawyers for the Second Respondent
O’Briens:  Lawyers for the Third Respondent