Fine Real Estate Pty Limited v Maguire

[1999] NSWCA 77

CITATION:	Fine Real Estate Pty Limited v Maguire [1999] NSWCA 77
FILE NUMBER(S):	CA 40632/98
HEARING DATE(S):	29 March 1999
JUDGMENT DATE:	29 March 1999
PARTIES :	Fine Real Estate Pty Limited (claimant) R G Maguire (opponent)
JUDGMENT OF:	Registrar Jupp

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	885/92
LOWER COURT JUDICIAL OFFICER:	Holt DCJ

COUNSEL:	Falk - claimant Colefax - opponent
SOLICITORS:	Gregory Falk & Associates - claimant Colin Biggers & Paisley - opponent
CATCHWORDS:	extension of time
DECISION:	Time to appeal extended to 1 April 1999;; Claimant to pay opponent'c costs of motion

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

No 40632/98

REGISTRAR JUPP

MONDAY 29 MARCH 1999

FINE REAL ESTATE NETWORK V R G MAGUIRE.

JUDGMENT: (on application for extension of time to file notice of appeal with appointment)

1. REGISTRAR: In this matter a Notice of Appeal without Appointment was filed on 21 August 1998. That appeal was in respect of a judgment of Holt DCJ of 24 July 1998 in which he found for the defendant.

2. It has become apparent during the course of the proceedings seeking extension of time that that Notice of Appeal Without Appointment was not served on the respondent. An affidavit sworn by Mervyn Keith Fine on 15 March 1999 concedes that as far as Mr Fine was concerned the Notice of Appeal Without Appointment was not served. The affidavit unfortunately does not disclose why Mr Fine assumed that service would be effected by someone other than himself.

3. The effect of the non service of that notice of appeal without appointment is that the claimant is effectively asking for an extension of time to appeal for a period of some 3 months. The respondents only became aware of the appeal when the notice of motion seeking extension of time was filed in November last year. (26 November 1998)

4. This is not a case where the appellant should assume that the extension of time will necessarily be granted. However, I have taken into consideration that at the time that the appeal was filed the appellant was not properly legally represented and in that situation Mr Fine appears to have made some incorrect assumptions as to what was going to happen.

5. There is no evidence that the appellant was seeking to obtain some improper advantage by not serving the notice of appeal without appointment.

6. The grounds of appeal which are annexed to the affidavit of Mr Falk of 26 November 1998 appear to be bona fide grounds of appeal. The respondent/opponent has not demonstrated any special prejudice that would flow from the extension of time to appeal. It appears to me that any prejudice that does flow can be remedied by a costs order.

7. The orders that I make are that the time to file and serve the notice of appeal with appointment be extended to 4.00pm on 1 April 1999. I indicate to the claimant that order requires the notice of appeal to be filed and served by that time. I also order that the claimant pay the opponent costs of this motion.

8. COLEFAX: There was also returnable today the opponent's notice of motion for security for costs. There is now agreement between my friend and myself and I hand up short orders by consent.

9. REGISTRAR: In respect of the motion for security for costs filed in court on 7 December 1998 by consent I make order 2 in the short minutes of order filed in court today. I note paragraph 3 and grant the liberty in paragraphs 4 and 5.

Certified correct
Steve Jupp
31/3/99