Pachkovski v Australian Executor Trustees Ltd (No 2)

[2011] NSWCA 95

Court of Appeal

New South Wales

Case Title:	Pachkovski v Australian Executor Trustees Ltd (No 2)
Medium Neutral Citation:	[2011] NSWCA 95
Hearing Date(s):	8 April 2011
Decision Date:	08 April 2011
Jurisdiction:
Before:	Hodgson JA at [1], [25]; McColl JA at [23]; Campbell JA at [24]
Decision:	Application for leave to appeal dismissed with costs. [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 - Application for leave to appeal out of time - No appearance for applicants on date appointed for hearing - Whether documents supplied by applicants supported the granting of leave.
Legislation Cited:
Cases Cited:	Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23 Australian Executor Trustees Ltd v Pachkovski [2010] NSWSC 1089
Texts Cited:
Category:	Principal judgment
Parties:	Alexandre PACHKOVSKI  (first applicant) Violetta PRIMANZON  (second applicant)  Grigoriy PRIMANZON  (third applicant) AUSTRALIAN EXECUTOR TRUSTEES LTD (ACN 007 869 794)
Representation
- Counsel:	Counsel: No appearance (applicants) J SIMPKINS SC  (respondent)
- Solicitors:	Solicitors: Self-represented (applicants) Gadens Lawyers (respondent)
File number(s):	2009/295053
Decision Under Appeal
- Court / Tribunal:
- Before:	Hidden J
- Date of Decision:	24 September 2010
- Citation:	Australian Executor Trustees Limited v Alexandre Pachkovski & Ors [2010] NSWSC 1089
- Court File Number(s)	SC 2009/295053
Publication Restriction:

Judgment

1. HODGSON JA: On 24 September 2010, Hidden J determined proceedings in which the respondent, Australian Executor Trustees Ltd (the mortgagee), sought possession of land owned by the applicants at Rowe Street, Woollahra, holding that the mortgagee was entitled to possession of the property, and to recover the sum outstanding under the loan agreement which was secured by the applicants' mortgage: see Australian Executor Trustees Ltd v Pachkovski [2010] NSWSC 1089.

1. On 12 October 2010, the primary judge gave judgment in favour of the mortgagee for a sum of just under $3 million, and ordered that the applicants give possession of the land.

1. On 17 December 2010, the primary judge made an order dismissing a cross-claim that had been put on by the applicants.

1. On 24 November 2010, the applicants applied for leave to appeal out of time from the primary judge's decisions. The application was listed for hearing before the Court today, on the basis that if leave was granted, the appeal would be disposed of without a further hearing.

1. The applicants did not appear to-day but sent a letter to the Court applying for an adjournment. For reasons given this morning, that adjournment was not granted and the Court proceeded to hear the matter.

1. In so doing, the Court had regard to documents provided by the applicants, including an 11-page document entitled "Argument to summons seeking leave to appeal". The Court…