P J Balnaves Nominees P/L v Third Szable Holdings P/L No. Scciv-02-165

[2002] SASC 276

P.J. BALNAVES NOMINEES PTY LTD v THIRD
SZABLE HOLDINGS PTY LTD and ANOR
[2002] SASC 276

Civil

1. PERRY J.               In this matter P.J. Balnaves Nominees Pty Ltd has brought into court a purported notice of appeal to a single judge from a judgment of Judge Burley dated 13 March 2002. The notice of appeal was not filed until 9 April 2002, but the explanation given by Mr Balnaves, who appeared for the company in circumstances which I will explain in due course, submitted that the notice of appeal had been lodged in time but its receipt, as it were, onto the court file was delayed due to an application which he made for waiver of fees.

2. In those circumstances I think it proper to treat the matter on the footing that the time for filing the notice of appeal to a single judge, if it was otherwise competent, should be extended. But for reasons which I will come to, there are other matters which lead me to strike out the notice.

3. The application which is before the court is an application by the proposed respondent for an order that the purported notice of appeal be dismissed as incompetent or, in the alternative, for want of prosecution (court file document No 42).

4. At the outset of the hearing of the application, a question was raised as to whether or not Mr Balnaves, who is an undischarged bankrupt, should be permitted to appear on behalf of the company. Irrespective of his status as a bankrupt, in order to appear for the company he would have to satisfy the requirements of SCR r 36.11. By reference to that rule, Mr Balnaves maintained that he had filed minutes of a meeting of the director of the company, who is his wife, which authorised him to appear. But there are other difficulties before leave for him to appear could be given, notably the question whether the articles of association of the company vested in Mr Balnaves the power of the board of directors to act between board meetings.

5. However, in the end I determined to put aside the technicalities associated with the question as to whether or not it was proper to give Mr Balnaves leave to appear and, not without some hesitation, I heard him on the merits of the application. In my view, the applicant is right, and the notice of appeal should have been a notice to the Full Court. So much follows from SCR r 106.05. Although r 106.05(2) sets out exceptions, which if applicable might authorise an appeal to a single judge, none of the exceptions apply.

6. Mr Balnaves suggested that the exception referred to in subrule (2)(a), which refers to orders made under the Real Property Act 1885, applied. But clearly the judgment or order of Judge Burley was not an order made under that Act.

7. It follows, in my view, that the notice of appeal is incompetent in that it should have been directed to the Full Court.

8. Putting aside the question of any extension of time within which to bring the appeal I would, in ordinary circumstances, have been disposed to direct that the notice of appeal operate as a notice of appeal to the Full Court. However, I would only be prepared to do so if there was any merit in the appeal, in the sense that the grounds set out in the purported notice identified an arguable case fit for the consideration of the Full Court.

9. I have heard Mr Balnaves as to that aspect of the matter, but in my view the notice of appeal does not disclose any arguable ground upon which the judgment in question may be impugned. In those circumstances, I am not disposed to make any direction that the notice of appeal be regarded as an appeal to the Full Court. I will yield to the application made by the respondent that the purported appeal be struck out as incompetent.

10. The order will be that on the application of the respondent, Third Szable Holdings Pty Ltd, the purported notice of appeal filed on 9 April 2002 is struck out as incompetent.

    [FOLLOWING DISCUSSION WITH COUNSEL]

11. PERRY J.               I order that the plaintiff, the purported appellant, P.J. Balnaves Nominees Pty Ltd, pay the costs of Third Szable Holdings Pty Ltd of and incidental to the application and the hearing before me, to be taxed.