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EX TEMPORE Judgment

1. HIS HONOUR: Before me is a notice of motion filed on 24 November 2015 by the applicant, Tanamerah Estates Pty Ltd. It seeks three classes of orders. First, a suite of 13 declarations amounting to, in substance, an acceptance by me of the various legal submissions sought to be agitated in the ultimate appeal. Secondly, leave to file an amended summons to include the subsequent decision of the primary judge (Black J). Thirdly, a stay of the orders made by Black J.
2. There has been no appearance by the respondent to the motion and to the appeal, Tibra Capital Pty Ltd. I have been taken to affidavit evidence to the effect that the respondent was served at its registered office by post and email to the solicitors for Tibra Capital last week.
3. The difficulty that arose before the primary judge is that Mr James Tydeman, who is a director of Tanamerah Estates, sought before the primary judge and before me to appear without leave for the company. No differently from the primary judge (see Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1708 at [2]) I granted leave to Mr Tydeman to appear before this Court, confined to the purposes of this application.
4. Tibra Capital issued a statutory demand which Tanamerah Estates applied to set aside pursuant to ss 459H and 459J of the Corporations Act 2001 (Cth). Tanamerah Estates, so far as the evidence before me establishes, has not retained a solicitor. Further, it was the sole applicant before the primary judge. Its director, Mr Tydeman, maintained before the primary judge, just as he proposes to maintain on appeal, that he is entitled to appear for Tanamerah Estates as its duly authorised representative, without the need for leave. The substantive arguments on appeal will turn on the interrelationship between UCPR pt 7 rr 7.1 and 7.2.
5. Rule 7.1 provides relevantly as follows: 7.1 By whom proceedings may be commenced and carried on (1) A natural person may commence and carry on proceedings in any court, either by a solicitor acting on his or her behalf or in person. … (2) A company within the meaning of the Corporations Act 2001 of the Commonwealth: (a) may commence and carry on proceedings in any court by a solicitor or by a director of the company, and (b) may commence and, unless the court orders otherwise, carry on proceedings in the Local Court by a duly authorised officer or employee of the company. (3) In the case of proceedings in the Supreme Court, subrule (2) (a) authorises a company to commence proceedings by a director only if the director is also a plaintiff in the proceedings. (4) A corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth): (a) may commence and carry on proceedings in any court by a solicitor, and (b) may commence and carry on proceedings in any court (other than the Local Court) by a duly authorised officer of the corporation, and (c) may commence and, unless the court orders otherwise, carry on proceedings in the Local Court by a duly authorised officer or employee of the corporation." Subrule (1A) deals with a power of attorney granted by a natural person and is not relevant. Subrules (4A) and (4B) deal with proceedings in the Industrial Relations Commission. Subrule (5) provides a further entitlement for a person other than a lawyer to commence and carry on proceedings in the Local Court.
6. Rule 7.2(1) provides as follows: 7.2 Affidavit as to authority to commence and carry on proceedings in Supreme Court or District Court (1) A person who commences or carries on proceedings in the Supreme Court or District Court: (a) as the director of a company within the meaning of the Corporations Act 2001 of the Commonwealth, or (b) as the authorised officer of a corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth), must file with the originating process, notice of appearance or defence, as the case may be, an affidavit as to his or her authority to act in that capacity, together with a copy of the instrument evidencing that authority. Subrule (2) makes provision as to the content of the affidavit to be made by the director of the company, as does subrule (3).
7. What emerges from those rules, to my mind clear beyond any argument, is that in the case of litigation in the Local Court, a company need not appear by way of solicitor. Secondly, in the case of proceedings in the Supreme Court, a company, once again, may commence proceedings by its director, without separately retaining lawyers, at least in circumstances where "the director is also a plaintiff in the proceedings": see r 7.1(3). Mr Tydeman proposes to contend before the Court of Appeal that in fact he, as director of his company, enjoys a broader right to commence and maintain proceedings brought by it as its authorised officer. That submission was rejected by the primary judge. Having done so, the primary judge gave a period of time within which Mr Tydeman might cause his company to retain lawyers in accordance with the construction of the rules his Honour had determined and applied: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1519.
8. More recently, by judgment given on 16 November 2015, the primary judge granted a limited stay of the dismissal of the proceedings to set aside Tibra's statutory demand for 21 days: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1708. That stay is shortly to expire.
9. The substantive question before me is whether to extend the limited stay already granted or alternatively to grant some further interlocutory relief pending the determination of the appeal in this Court. I have not heard full argument on the legal position developed by Mr Tydeman, which turns upon the interrelationship between rr 7.1 and 7.2, and other provisions, notably in the definitions of the UCPR as well as in the Interpretation Act. What I would regard as an ordinary reading of the Rules is that the primary power and authorisation in the Rules as to the commencement and carrying on of litigation by companies is found in r 7.1. That rule, as I have said, gives a qualified right to directors, in some circumstances, to commence proceedings on behalf of companies without the benefit of lawyers. To that basic entitlement established by r 7.1, on a natural reading it might be thought that r 7.2 imposes an additional obligation, by way of filing an affidavit about a director's authority in r 7.2 in the circumstances where a director is permitted so to act pursuant to the right in 7.1. That, as I read the decision of this Court in May v Christodoulou [2011] NSWCA 75; 80 NSWLR 462, was how Handley AJA treated the matter at [8], which was in the following terms: "Part 7 r 7 (2), read with relevant definitions, enables a company, acting by a director, to commence and defend proceedings in any court, but r 7.1(3) provides that a company can only commence proceedings in the Supreme Court by a director if that director is also a plaintiff. Rule 7.2(2) prescribes the steps required before a director can act in this way. The prescribed affidavit must contain a statement by the director (r 7.2(2)(iv)) that he is aware that 'he ... may be liable to pay some or all of the costs of the proceedings.'"
10. Contrary to what was put to me by Mr Tydeman, that appears to be a natural reading of what his Honour has recorded in the judgment. Mr Tydeman also took me to the earlier decision of Nicholas J in Manitowoc Crane Group Asia Pte Ltd v Preston Erection Pty Ltd [2004] NSWSC 1141 and to passages within that ex tempore judgment which addressed the right of Mr Preston (a director of the first, second and third defendants) to appear for his companies. There are three difficulties I can see in his reliance upon this decision. The first is a decision of a first instance judge of this Court. The second is that it is not clear from the reasons whether there was, as I have done and as Black J did in the proceedings at first instance before me, granted leave to Mr Preston to appear. The third is that the decision of Nicholas J turned on the precise terms of the former Rules, which are no longer in force.
11. Ordinarily when application is made for a stay pending appeal, or pending an application for leave to appeal, the discretion is governed by well‑known principles associated with Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694-695 and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 at [17]-[20]. Those principles establish that it is for the applicant to demonstrate a proper basis for a stay, following the determination at first instance. Ordinarily it is appropriate to consider first whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and, secondly, if so, where the balance of convenience lies: see Kalifair at [18] and Vaughan v Dawson [2008] NSWCA 169 at [17].
12. The present application is relatively unusual in that it is "all or nothing". The success or failure of Tanamerah Estates' appeal will stand or fall depending upon the outcome of the pure legal question to which I have averted above. As noted I have not heard full argument on the question and it is inappropriate for that question to be determined by me in those circumstances, especially bearing in mind the absence of the respondents. It will be clear however from what I have said that I do not regard the submissions advance by Mr Tydeman as particularly strong.
13. I also note that in 2013, litigation between the same parties in this Court was also directed to the question whether Tanamerah Estates could appear by Mr Tydeman, without appointing lawyers: see Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266. So far as I can see, the arguments advanced to this Court on that occasion did not extend to what has been put to me today. However, it plainly enough would have been open to Tanamerah and Mr Tydeman to advance those arguments on that occasion had they seen fit to do so.
14. Ultimately I return to the basal principle that it is for the applicant which (as is its right) wishes to test the correctness of a decision presently binding it by way of appeal in this Court, to make out that it is an appropriate case for a stay or for other interlocutory relief. I accept that Mr Tydeman on behalf of his company feels (and perhaps feels very strongly) that he is entitled to take the course that he does. The fact of the matter is, though, that one judge having heard submissions on the point has resolved it against him but on a basis which permitted him and his company to have the merits of their application to set aside Tibra Capital's statutory demand determined on the basis that they complied with the law as determined by him. In other words, it has been the subsequent decision by Tanamerah Estates and Mr Tydeman to maintain their construction of rr 7.1 and 7.2 which has led to the present position. It is their obligation to make out an appropriate case for a stay and, in the circumstances that I have indicated, I do not think that they have discharged that onus.
15. Turning to the other relief that is sought, I indicated during the hearing my understanding that, because less than 28 days have elapsed since proceedings in this Court have been commenced, Tanamerah Estates was entitled to file an amended summons. In the absence of any opposition to that course from Tibra Capital I will make an order to that effect. The balance of the notice of motion seeks declaratory relief - that is to say, final relief. The declarations sought were helpful in indicating the nature of the legal argument which Tanamerah Estates wishes to propound. However it is inappropriate for me to, in this interlocutory referrals list, to make declarations of the nature sought.
16. Accordingly for those reasons I make these orders. 1. Grant leave to Tanamerah Estates to file an amended summons in these proceedings to include setting aside the whole of the decision made by Black J on 16 November 2015. 2. Otherwise dismiss the notice of motion filed 24 November 2015.