Valder v Wolak

[2012] NSWCA 173

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Valder v Wolak & Anor [2012] NSWCA 173

Hearing dates:

25 May 2012

Decision date:

25 May 2012

Before:

Beazley JA;
Tobias AJA

Decision:

1. Summons for leave to appeal is dismissed;

2. The applicant, Valdemar Ian Valder, is to pay the costs of the second respondent, the New South Wales Land and Housing Corporation.

[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 - Summons seeking leave to appeal - Notice of intention to appeal served out of time - Extension of time in which to file summons seeking leave to appeal required - No extension sought - Failure of appellant to appear - Written submissions did not demonstrate arguable case for leave - Summons seeking leave to appeal dismissed.

Category:

Principal judgment

Parties:

Valdemar Ian Valder (Applicant)
Jozefa Wolak (First Respondent)
New South Wales Land and Housing Corporation (Second Respondent)

Representation:

Counsel:
In person (Applicant)
Barbara Wolak (First Respondent)
M Neville (Second Respondent)
Solicitors:
In person (Applicant)
In person (First Respondent)
Legal Services Branch, New South Wales Land and Housing Corporation (Second Respondent)

File Number(s):

2012/00005574

Publication restriction:

No

 Decision under appeal 

Citation:

Ian Valder Valdemar v Jozefa Wolak [2011] NSWSC 1612

Date of Decision:

2011-12-20 00:00:00

Before:

Rothman J

File Number(s):

2011/405899

Judgment

1. THE COURT: There is listed before the Court today a summons seeking leave to appeal filed by Valdemar Ian Valder against Jozefa Wolak as first respondent, and the New South Wales Land and Housing Corporation as the second respondent. The summons seeks leave to appeal against the whole of the order made by Rothman J on 20 December 2011.

1. On that occasion, when the matter came before Rothman J in the duty list on 20 December 2011, his Honour doubted that there was actually any application before him. His Honour stated that, should he be wrong about that, he dismissed any such interlocutory application and ordered that Mr Valder pay the costs of the second defendant of that day, the second defendant being the New South Wales Land and Housing Corporation.

1. On 2 April 2012, Mr Valder filed a summons seeking leave to appeal. He also filed a notice of appeal which ought to be treated as a draft notice of appeal in accordance with the practice requirement that in the bringing of a summons seeking leave to appeal, a draft notice of appeal should also be filed. In that document, Mr Valder stated in para 2 on p 2 that the appellant had filed but not served a notice of intention to appeal.

1. Notwithstanding that the appellant filed a notice of intention to appeal, because he did not serve that notice of intention to appeal, the time for the filing of the summons seeking leave to appeal was twenty-eight days from the date of Rothman J's order. Mr Valder did not file the summons seeking leave to appeal until 2 April 2012 and it is therefore out of time. He did not seek an extension of time for the filing of that summons. For that reason alone, the summons seeking leave to appeal ought to be dismissed.

1. In any event, Mr Valder did not appear on the hearing of the summons seeking leave to appeal this morning. He was called three times outside the court but did not appear. The Court was informed that there was a matter listed in the Local Court in which Mr Valder was involved today, but apart from that information being contained in the online registry of court listings, the Court has no information as to whether Mr Valder is presently at the Local Court or not. He certainly sent no message to this Court indicating that he was not available for the hearing at 10.45 am. Accordingly, no argument has been advanced before the Court orally on the summons seeking leave to appeal.

1. The Court has had the opportunity to read the submissions made by Mr Valder in support of his summons seeking leave to appeal. It is the Court's opinion that those submissions do not demonstrate that Mr Valder has an arguable case for leave. Indeed, the summons seeking leave to appeal is without merit. For that reason also, the summons seeking leave to appeal should be dismissed.

1. Accordingly, the orders of the Court are as follows:

1.Summons for leave to appeal is dismissed;

2.The applicant, Valdemar Ian Valder, is to pay the costs of the second respondent, the New South Wales Land and Housing Corporation.

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Amendments

14 June 2012 - Corrected appearance for Second Respondent

Amended paragraphs: Coversheet

Decision last updated: 14 June 2012