Dye v Commonwealth Bank of Australia (No 2)

[2012] NSWCA 247

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dye v Commonwealth Bank of Australia (No 2) [2012] NSWCA 247

Hearing dates:

2 July 2012

Decision date:

10 August 2012

Before:

Campbell JA
Sackville AJA
Preston CJ of LEC

Decision:

(1) The appeal initiated by Notice of Appeal filed 18 November 2010 is dismissed.

(2) Appellant to pay costs of the Respondent of that appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - procedure - appeal mistakenly brought as of right by Notice of Appeal when in fact leave was required - strike out motion - appeal dismissed

Cases Cited:

Dye v Commonwealth Bank of Australia [2012] NSWCA 220

Category:

Consequential orders

Parties:

Vivienne Louise Dye (Applicant)
Commonwealth Bank of Australia (First Respondent)
Barbara Chapman (Second Respondent)

Representation:

Counsel:
Self-Represented (Applicant)
P W J Gray SC; M Richardson (Respondents)
Solicitors:
Self-Represented (Applicant)
Clayton Utz (Respondents)

File Number(s):

2009/297559

 Decision under appeal 

Citation:

Dye v Commonwealth Bank of Australia [2010] NSWSC 1238

Date of Decision:

2010-10-21 00:00:00

Before:

McClellan CJ at CL

File Number(s):

2009/297559

Judgment

1. THE COURT: The Court delivered judgment in this matter on 26 July 2012: Dye v Commonwealth Bank of Australia [2012] NSWCA 220. The reasons for judgment dealt with a Notice of Motion to extend the time in which to seek leave to appeal, and an application for leave to appeal. The Court extended the time in which to seek leave to appeal, but dismissed the application for leave to appeal.

1. The basis of the application for an extension of time was that the Applicant had lodged, within time, the documents that would be appropriate if she had an appeal as of right, and it was only when the solicitor for the Respondents told her that she needed leave to appeal that she realised leave was needed, and that once she realised leave was needed, she lodged the application seeking leave to appeal promptly. This is the explanation that was accepted, at [30], as an adequate explanation for the delay. The hearing on 2 July 2012 was conducted on the basis that leave to appeal was needed.

1. There was also listed on 2 July 2012, the appeal that had been lodged as though of right, together with a Notice of Motion seeking to strike that appeal out as incompetent.

1. Because of it having become common ground by the time of that hearing that leave to appeal was needed, the Court overlooked making the formal orders disposing of those processes. It is appropriate to do so now. The Court orders:

(1) The appeal initiated by Notice of Appeal filed 18 November 2010 is dismissed;

(2) Appellant to pay costs of the Respondents of that appeal.

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