WEST v HANCOCK [1988] NSWCA 174

WEST v HANCOCK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, SAMUELS and MAHONEY JJA 7 November 1988, 7 November 1988

[1988] NSWCA 174

Hope JA The Court has before it an application by Mr Raymond Stanley West for leave to appeal against an order of his Honour Finlay J, in which an application to extend time to lodge an appeal against the order of Master Monaghan was refused.

The history of the matter appears to be this. Mr West owned a motor vehicle and he brought proceedings in conversion against Mr Hancock in the District Court on 5 September 1985. Judge Flannery found for Mr West and awarded him damages, including interest, in the sum of $280. There was no appeal from that decision, and by virtue of s130 of the District Court Act it may be that leave would have to be obtained from this Court to appeal in any event. It is, however, not necessary to resolve that question for no such appeal or application for leave to appeal was brought.

Mr West commenced fresh proceedings in the Supreme Court, in which he claimed damages for (1) misappropriation of truck; (2) demurrage; (3) new truck; (4) postage; (5) interest and (6) inconvenience.

An application appears to have been made to the Supreme Court to strike out those proceedings, and it would appear that an order that the statement of claim should be struck out was made by Grove J. In due course a further application was made which came before Master Monaghan. This application was by way of notice of motion that the plaintiffs summons should be struck out and the Master made such an order.

Mr West then applied out of time for the extension of time to appeal to the Supreme Court. This is the application which came before Finlay J, and which his Honour dismissed. In the course of his reasons, his Honour quoted an extract from the judgment of Master Monaghan, and described the summons for damages which Mr West had made. In the light of the terms of the summons for damages and in the light of the order made by Grove J, he had no doubt that the proceedings brought against the defendant were oppressive and, he felt, vexatious.