Sandhurst Trustees Ltd v Gallerie Invest P/L & Ors No. Scgrg-99-995

[2000] SASC 356

SANDHURST TRUSTEES LTD v GALLERIE INVEST PTY LTD & ORS
[2000] SASC 356

Full Court:  Doyle CJ, Lander and Wicks JJ

1................ DOYLE CJ ..... This is an application for an extension of time within which to seek leave to appeal and for leave to appeal to the Full Court.

1. The decision in relation to which the application is made is a decision by Williams J. By that decision, he dismissed an appeal against two orders made by a Master. The first was an order entering summary judgment for the plaintiff against certain defendants, including Dr Finikiotis, the present applicant. The second order made by the Master was an order striking out a counterclaim by those defendants.

2. Williams J treated Dr Finikiotis as representing all of the defendants and, accordingly, subject to the matter being later clarified, it is convenient to continue to do so.

3. The application for leave to appeal was made in writing to the Full Court, Williams J having refused leave to appeal against his decisions just referred to. The application made to the Full Court is made out of time and, accordingly, an extension of time is required for the making of the application. The application is made to the Full Court pursuant to rule 94.02, the application for leave having been refused by the Judge. The application is made in writing as required by rule 94.03 of the rules. It was considered privately by the Full Court comprising me, Lander J and Wicks J.

4. Lander J and I are of the view that the order made by the Master entering summary judgment for the plaintiff was a final order. Williams J was able to hear the appeal from the order by virtue of Rule 106.05(2)(c).

5. As the appeal is against a final order, we are of the view that an appeal lies as of right by virtue of s 50(1) of the Supreme Court Act. Accordingly, as to that part of the application, the appropriate course is to make no order for the grant of leave on the basis that leave to appeal against the decision of Williams J dismissing the appeal against the order for summary judgment is not required.  The applicants have an appeal as of right against that decision. It will, however, be necessary for the applicants to obtain an order extending the time within which the Notice of Appeal may be filed.

6. As to the order striking out the counterclaim by the applicants, Lander J and I are of the view that the order is not a final order and that leave to appeal against that aspect of the decision of Williams J is required. We are of the opinion that an extension of time to seek leave to appeal should be refused because the appeal has no reasonable prospects of success. The decision of the Master striking out the counterclaim and the decision of Williams J on appeal, in our opinion, are plainly right.

7. For those reasons, we would refuse leave to appeal against the decision of Williams J dismissing the appeal against the order of the Master striking out the counterclaim.

8. Wicks J is of the view that the order of the master should be treated as a single order and that the applicants have an appeal as of right as against all aspects of the order.

9. In accordance with the opinion of the majority, the order of the Court is that an extension of time within which to seek leave to appeal against the order striking out the counterclaim be refused, and that no order be made on the application for leave to appeal against the order entering summary judgment.  The applicants having an appeal as of right against that decision.

10. I direct that the applicants be notified of the decision of the court and be provided with a copy of these reasons.

1................ LANDER J....... I agree.

2................ WICKS J......................... I agree.