Wang v Johnston Vaughan (No 2)

The matter of *Wang v Johnston Vaughan (No 2)* concerned a notice of motion filed by the applicant after judgment had been reserved but before it was delivered. The applicant sought to have the notice of appeal, purportedly filed on 29 December 2014, removed from the Court file. The respondent sought the dismissal of the notice of motion. The decision was made by Emmett JA.

The central legal issue before the Court was whether the notice of motion, filed after judgment was reserved but prior to judgment being given, was misconceived. This required the Court to consider the procedural propriety of filing such a motion at that specific juncture in the proceedings.

Emmett JA reasoned that a notice of motion filed after judgment has been reserved and before judgment is given is procedurally improper and therefore misconceived. The Court held that the appropriate course for a party wishing to withdraw an appeal is to file a notice of discontinuance. As the applicant had not filed a notice of discontinuance, and instead sought to remove the notice of appeal via a notice of motion, the motion was dismissed.

Consequently, the Court ordered that the notice of appeal, purportedly filed on 29 December 2014, be removed from the Court file. The notice of motion filed on 13 January 2015 was dismissed, and the applicant was ordered to pay the respondent’s costs of the motion.