Khaled El Sayed v Sayed El Hawach

[2014] NSWCA 259

Court of Appeal

New South Wales

Case Title:

Khaled El Sayed v Sayed El Hawach

Medium Neutral Citation:

[2014] NSWCA 259

Hearing Date(s):

28 July 2014

Decision Date:

28 July 2014

Before:

Tobias AJA

Decision:

1. Extend time for the filing of the notice of appeal up to and including 21 March 2014.

[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:

PRACTICE AND PROCEDURE - extension of time for filing notice of appeal - notice of appeal filed one day out of time - whether the appeal is totally without merit

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) Pt 51 r 9(1)(b)

Category:

Consequential orders

Parties:

Khaled El Sayed (First Appellant)
M E Assett Investments Pty Ltd (Second Appellant)
Sayed El Hawach (First Respondent)
Victoria Lahoud (Second Respondent)
Brady Street Developments Pty Ltd (Third Respondent)

Representation

- Counsel:

Counsel:
Mr WR Chan (Appellants)
Mr T Rickard (First Respondent)
Mr R Horsley (Second and Third Respondents)

- Solicitors:

Solicitors:
Clamenz Evans Ellis Lawyers (Appellants)
Wehbe & Co (First Respondent)
Horowitz & Bilinski (Second and Third Respondents)

File Number(s):

2013/15760

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Pembroke J

- Date of Decision: 

20 December 2013

- Citation:

Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd [2013] NSWSC 1755

- Court File Number(s):

2012/266799

Publication Restriction:

None

JUDGMENT

1. TOBIAS AJA: I have before me an amended notice of motion filed on behalf of the respondents to the appeal alleging that the appeal is incompetent because it was filed one day out of time and therefore seeking an order that it be dismissed. Although the appellants have not filed a notice of motion seeking an extension of time for the filing of the notice of appeal, I am prepared to assume that such a notice of motion is before me and no objection has been taken to that course. However, the appellants should file with the Registry today a formal notice of motion seeking an extension of time. Although at one point it was suggested by the appellants that the notice of appeal had been filed within time, it is now conceded that it was filed one day out of time, namely, on 21 March 2014 rather than 20 March 2014.

2. In support of the application to extend time the appellants filed an affidavit by Daniel Clark affirmed 30 June 2014 who is currently the solicitor having the carriage of the matter, the solicitor on the record with the usual carriage of the matter being on maternity leave. At paragraph 10 of that affidavit Mr Clark sets out the circumstances which resulted in the delay of one day in the filing of the notice of appeal. There has been no challenge to that paragraph or what is contained within it. In fact, the respondents' opposition to the granting of leave is based upon the contention that the appeal is doomed to fail and therefore there would be no utility in granting an extension of time so that the appeal should be disposed of here and now by being dismissed.

3. The power of the Court to grant leave to file a notice of appeal out of time is to be found in Pt 51 r 9(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW). The considerations relevant to the exercise of the discretion to extend time include the presence or absence of a satisfactory explanation for the delay, the possible prejudice or injustice to either party, and the merits of the argument involved in the proposed appeal being a reference to whether or not the appeal is totally without merit. No submission in opposition to the grant of an extension of time has been made in relation to the first two of those considerations, the respondents concentrating on the third. In my view, Mr Clark's explanation for the delay, which has not been challenged, is sufficient, noting that the filing of the notice of appeal was only one day out of time. Furthermore, there is no suggestion that the granting of an extension would cause any prejudice to the respondents.

4. It is difficult to determine the question as to whether or not the appeal is entirely without merit. In my view, it would be a relatively rare case where an extension of time of one day only was refused upon the basis that the appeal was meritless. In my view, it would have to be shown quite clearly that it is hopeless and therefore a waste of the Court's time and resources. Having considered the outline of submissions on the appeal filed on 16 June 2014 on behalf of the appellants, and having read the draft outline of submissions of the second and third respondents that were handed up to me today, and notwithstanding the force of those submissions, I am not satisfied that the appeal is so devoid of merit or so hopeless as would justify my exercising my discretion to dismiss the appeal, in effect, out of hand.

5. For the foregoing reasons I propose to grant an extension of time by extending the time for the filing of the notice of appeal up to and including 21 March 2014 and I so order. Accordingly, so much of the notice of motion that seeks an order that the appeal be dismissed as incompetent is rejected.

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