Crawley v Cochrane

[1999] NSWCA 287

CITATION:	Crawley v Cochrane [1999] NSWCA 287
FILE NUMBER(S):	CA CA 40876/98
HEARING DATE(S):	19 July 1999
JUDGMENT DATE:	19 July 1999
PARTIES :	Christopher William Crawley - claimant/appellant Graham Cochrane (in his capacity as Strata Schemes Adjudicator) - 1st opponent/respondent The Owners - Strata Plan No 222481 - 2nd opponent/respondent
JUDGMENT OF:	Registrar Jupp

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	EQ 2608/98
LOWER COURT JUDICIAL OFFICER:	Cohen J

COUNSEL:	Mr Cohen - claimant/appellant Mr Young - 2nd opponent/respondent (submiting appearance filed for 1st opponent/respondent)
SOLICITORS:	Aubrey F Crawley & Co - claimant/appellant Crown Solicitors Office - 1st opponent/respondent (submitting appearance) David Le Page - 2nd opponent/rspondent
CATCHWORDS:	competency of appeal
ACTS CITED:	Supreme Court Act
DECISION:	motion for an extension of time to seek leave to appeal dismissed, appeal struck-out as incompetent, stay of orders for 28 days or if motion for review of orders is filed till that review is determined

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40876/98

REGISTRAR JUPP

Monday 19 July 1999


CHRISTOPHER WILLIAM CRAWLEY v GRAHAM COCHRANE

JUDGMENT


1   REGISTRAR: These proceedings were commenced by a holding summons for leave to appeal filed on 6 November 1998. The appeal is from a decision of Justice Cohen of 14 October 1998 dismissing a summons filed by the appellant seeking declarations that certain orders of the defendant, the first respondent, were invalid.
2   A notice of appeal with appointment was subsequently filed on 4 February 1999, the appellant's legal advisers apparently having formed the view that they have an appeal as of right.
3 On 29 April 1999 at the first directions call-over, I indicated to the parties that the appeal appeared incompetent pursuant to section 101(2)(r) of the Supreme Court Act (and possibly section 101 subsection 2(h) of the Supreme Court Act).
4   I directed that if the appellant asserted that they had an appeal as of right that they file a Part 51 Rule 8 affidavit by 13 May 1999 and I adjourned the matter to 17 June 1999.
5   On 17 June 1999 the matter was listed before Deputy Registrar Howe. There is no transcript of what occurred on that day. It appears that Deputy Registrar Howe agreed with my view as to the competency of the appeal, despite an affidavit of T Tsathas sworn 4 June 1999, and he directed that any application for an extension of time to file a summons for leave to appeal be filed by 9 July 1999.
6   Such a motion was filed and was returnable at the directions call-over last Thursday 15 July 1999, and was stood over till today.
7   At the adjourned directions call-over on 15 July 1999, Mr Cohen on behalf of the appellants, indicated to me that he wished to argue that the appeal was competent without leave and would be seeking to review any decision saying that the appeal was incompetent, rather than proceeding with an application for leave.
8   To that end what I propose to do is to dismiss the motion seeking an extension of time to seek leave and to strike out the appeal as incompetent. I make those orders.
9   Mr Cohen has requested that if I make such an order, that the order be stayed until a review of the orders can be undertaken. I stay the order striking out the appeal for 28 days and if a motion seeking a review of these orders is filed, till that motion has been determined.
10   On 15 July I reserved the costs of the second respondent. In the ordinary course the appropriate order would appear to be that the appellant should pay the second respondent's costs of the appeal and the motion. Those are the orders that I make.

Certified correct

Steve Jupp 5/8/99