Shaw v Official Trustee in Bankruptcy

[1999] NSWCA 131

CITATION:	Shaw v Official Trustee in Bankruptcy [1999] NSWCA 131
FILE NUMBER(S):	CA 41043/98; 40004/99; 40264/99
HEARING DATE(S):	3 May 1999
JUDGMENT DATE:	3 May 1999
PARTIES :	Lily Shaw (opponent/appellant 41043/98; 40004/99) George Shaw (opponent/appellant 40264/99) Official Trustee in Bankruptcy (claimant/respondent) Westpac Banking Corporation (2nd respondent 40264/99)
JUDGMENT OF:	Registrar Jupp

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	4791/98; 5040/98; 1746/99
LOWER COURT JUDICIAL OFFICER:	Austin J & Hamilton J

COUNSEL:	Mr Priestley - claimant Mr T Shaw - (son of the appellants/opponents) by leave Mr Daniel - for 2nd respondent in 40264/99
SOLICITORS:	Kemp Strang - claimant no legal representation for opponents/appellants no appearance filed for 2nd respondent in 40264/99
CATCHWORDS:	incompetent appeals
ACTS CITED:	Supreme Court Act - s101(2)
DECISION:	appeals dismissed as incompetent, with costs, however if leave to appeal is filed in respect of any of the decisions the costs are reserved to the Court determining the application for leave.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

REGISTRAR JUPP

MONDAY 3 MAY 1999

41043/98 - LILY SHAW v OFFICIAL TRUSTEE IN BANKRUPTCY
40004/99 - LILY SHAW v OFFICIAL TRUSTEE IN BANKRUPTCY
40264/99 - GEORGE SHAW v OFFICIAL TRUSTEE IN BANKRUPTCY

JUDGMENT

1. REGISTRAR: In each of these proceedings the Official Trustee in Bankruptcy has filed a notice of motion seeking to have the appeals dismissed or alternatively that the appeals be stayed till security for costs is provided.

2. Proceeding 41043/ 98 is an appeal by Lily Shaw from a decision of Austin J of 3 December 1998 refusing an extension of a real property caveat. Proceeding 40004/ 99 is an appeal by Lilly Shaw from a decision of Hamilton J of 21 December 1998 ordering removal of a real property caveat. Proceeding 40264/99 is an appeal brought by George Shaw from a decision of Hamilton J of 25 March 1999 refusing an adjournment and refusing to add a party to the proceedings. In those proceeding on 26 March 1999 Hamilton J dismissed the summons brought by George Shaw seeking an extension of a caveat.

3. Proceeding 41043/98 was called over before me on 15 April 1999 and was adjourned to 20 May 1999. The appellant in those proceedings was directed to file a Part 51 Rule 8 affidavit showing that there was an appeal as of right by 29 April 1999. An affidavit sworn by Lilly Shaw on 26 April 1999 has been filed and I have read it. It addresses the restriction on appeals pursuant to section 101 (2)(i) of the Supreme Court Act. It does not address the restriction imposed by section 101 (2)(m) of the Supreme Court Act. That section restricts appeals from judgments under certain sections of the Real Property Act.

4. An application for an extension of a caveat is an application pursuant to section 74K of the Real Property Act and as such section 101 (2)(m) of the Supreme Court Act requires leave to appeal from an order in those proceedings.

5. Proceeding 40004/99 was called over on 22 April 1999 and was also adjourned to 20 May 1999. The appellant was also directed to file a Part 51 Rule 8 affidavit in those proceedings. This appeal is also incompetent without leave pursuant to section 101 (2)(m) of the Supreme Court Act as it is from a judgment on an application, either under section 74MA or section 74O of the Real Property Act. Even if that appeal is framed as being from an earlier judgment to refuse an adjournment in those proceedings, then leave is required pursuant to section 101 (2)(e) of the Supreme Court Act.

6. Proceeding 40264/99 has not yet been called over. The call over is scheduled for 1 July 1999. However this appeal is also incompetent on the same basis as the appeal in 41043/98 and again, if it is only in respect of orders refusing an adjournment or to add parties, it is incompetent pursuant to section 101 (2)(e) of the Supreme Court Act.

7. Under the circumstances where it is apparent that all three appeals require leave to appeal, the appropriate course appears to me to be that the appeals should be dismissed as incompetent and that the appellants should be ordered to pay the respondent's costs.

8. Mr Priestley, who has appeared on behalf of the Official Trustee in Bankruptcy, has asked me to make an order to the effect of staying any further proceedings on the basis that any appeal or application for leave to appeal is manifestly hopeless. I am declining to make an order in those terms today as there has been inadequate notice that such a wide ranging order would be sought and Mr and Mrs Shaw have not been given an opportunity to establish that the appeals they would be seeking to bring are bona fide appeals with any real prospects of success. I would have to say however, from my reading of the relevant material, that the prospect of leave to appeal being granted is remote and that even if leave to appeal were granted any appeals brought pursuant to that leave are unlikely to be successful. I bring that to the attention of the Shaws so that they can take that into account in determining whether they take any further action to seek leave to appeal from the relevant decisions.

9. It is up to the Shaws to determine whether they want to apply for leave to appeal in respect of the relevant judgments, it does not really appear to me to be necessary to make an application for leave to appeal against all the judgments because if leave to appeal is granted and the appeal allowed in one case and the relevant equitable right can be established, then orders are going to be made in favour of the Shaws in any event. That however seems to be very unlikely.

10. The orders that I make in each of these proceedings are that the notices of appeal be dismissed with costs.

11. MR PRIESTLEY ADDRESSED ON COSTS

12. I will amend the order as to costs to the effect that if an application for leave to appeal from any of the relevant decisions is filed, the costs of today are reserved to the Court determining that application for leave.

Certified correct
Steven Jupp 11.5.99