Thomas v O'Neill

[2013] NSWCA 23

Court of Appeal

New South Wales

Case Title:

Thomas v O'Neill

Medium Neutral Citation:

[2013] NSWCA 23

Hearing Date(s):

11 February 2013

Decision Date:

11 February 2013

Before:

Allsop P at [1]; [12]
Macfarlan JA at [2]

Decision:

The Court makes the following orders:

(1) Application for leave to appeal against appointment of the trustees for sale and the application for an extension of time in which to file and serve that application be dismissed with costs.

(2) Exhibit B may be returned to applicant.

[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 dismissed - no issue of principle

Cases Cited:

Ross v Ross [2010] NSWCA 301
Thomas v Stockman [2012] NSWCA 444

Category:

Procedural and other rulings

Parties:

Annette Carol Thomas (Applicant)
Michael O'Neill (First Respondent)
Lorraine Elizabeth Thomas (Second Respondent)

Representation

- Counsel:

Counsel:
Self-represented Applicant
D Williams (Respondents)

- Solicitors:

Solicitors:
Self-represented Applicant
J P O'Neill Solicitors (Respondents)

File Number(s):

CA 2012/385631

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Schmidt J

- Date of Decision: 

21 September 2012

- Citation:

Evans v Thomas

- Court File Number(s):

SC 2011/357637

JUDGMENT

1. ALLSOP P: I will ask Macfarlan JA to give the first judgment in this matter.

2. MACFARLAN JA: This is an application by Mrs Annette Thomas for leave to appeal against consent orders made on 4 February 2011 appointing Mr Allan Stockman and Mr Linden Evans as trustees for sale of a property co- owned by the applicant and her sister, Ms Lorraine Thomas, who is the second respondent to the application. The first respondent is Mr Michael O'Neill, a solicitor who was acting for the applicant at the time the consent orders were made.

3. As the application was not filed until 12 December 2012 it is long out of time and the applicant requires an extension of time in the order of twenty months to enable her to proceed. No adequate explanation for the delay has been given, and for the reasons described below, the applicant has not in any event shown she has any arguable basis for an appeal. An extension should be refused and the application for leave to appeal dismissed.

4. The circumstances giving rise to the application are described in Thomas v Stockman [2012] NSWCA 444. That description need not be repeated here. The appeal papers do not reveal whether the consent orders of 4 February 2011 were part of a contractual bargain between the applicant and her sister or merely an acceptance by the applicant of orders sought by her sister. As the task of challenging the orders…