Jaffari v Grabowski

[2012] NSWCA 425

Court of Appeal

New South Wales

Case Title:

Jaffari v Grabowski

Medium Neutral Citation:

[2012] NSWCA 425

Hearing Date(s):

8 December 2012

Decision Date:

08 December 2012

Before:

Barrett JA

Decision:

1.The application for extension of time is dismissed.
2. I order that the applicants for an extension of time pay the costs of the respondent to that application.

[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:

PROCEDURE - appeal - application for extension of time to appeal - no matter of principle

Cases Cited:

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 519
Tomko v Palasty (No. 2) [2007] NSWCA 369; (2007) 71 NSWLR 61

Category:

Principal judgment

Parties:

Mehdi Jaffari - First Appellant
Tracy Jaffari - Second Appellant
Livia Grabowski - Respondent

Representation

- Counsel:

First and Second Appellants in person by telephone link from New Zealand
M T Hutchings - Respondent

- Solicitors:

First and Second Appellants in person
McIntosh Macphillamy & Co - Respondent

File Number(s):

2012/315253

Decision Under Appeal

- Before:

Gibb DCJ

- Date of Decision: 

15 July 2011

- Court File Number(s):

2009/338914

JUDGMENT

1. The applicants, Mr and Mrs Jaffari, seek an extension of time for the filing of a notice of appeal. They were the unsuccessful defendants in an action in the District Court in which they were sued for debt by Ms Cato who has since died and whose legal personal representative is the present respondent.

2. The case was heard by her Honour Judge Gibb who on 15 July 2011, ordered judgment in favour of Ms Cato in the sum of $150,000 plus interest of $36,480.83, making a total judgment sum of $186,480.83. Judge Gibb delivered comprehensive reasons for judgment in which she canvassed defences which included, in general terms, the propositions that the acknowledged loan had been forgiven or that there had been other forms of indulgence by Ms Cato, removing the liability of the present applicants to repay the loan. Those matters were canvassed in detail. The defences were not upheld and the judgment I have mentioned was entered.

3. The applicants referred immediately or fairly soon to the possibility of appeal. They attempted to obtain Legal Aid in New South Wales to permit them to pursue an appeal or at least to pursue the possibility of appeal. They were by that time living in New Zealand where they now reside. The application for Legal Aid was refused in August 2011. The letter of refusal referred to rights to seek review of the decision but there is evidence before me that any such review was sought.

4. Shortly beforehand, in July 2011, the solicitors who had acted…