COUNCIL OF THE SHIRE OF MUDGEE v CARMYLLIE PTY LIMITED [1988] NSWCA 32

COUNCIL OF THE SHIRE OF MUDGEE v CARMYLLIE PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

McHucu JA 29 August 1988, 29 August 1988

[1988] NSWCA 32

McHugh JA (MOTION)

This is a motion by the Council of the Shire of Mudgee who is a respondent to an appeal in this court seeking an order than the appeal be dismissed by reason of the gross delay which has occurred. The decision the subject of the appeal was given by Lusher J as long ago as 15 September 1984. A notice of appeal was filed shortly thereafter. An appointment to settle the index was made for 30 January 1985. It is now the second half of 1988, and the matter has not been progressed any further.

The solicitor for the Claimant has annexed to his affidavit in support of the Motion certain correspondence between the parties. Mr King, who appears for the Claimant, says that he does not dispute the assertions contained in the correspondence of the solicitors acting for the Opponent.

In a letter from the Opponent's solicitors of 26 April 1988, it is asserted: "Our client has (sic) at all times was under the impression that an appeal had been lodged against the decision of Lusher J in the proceedings." It also appears from the correspondence that one solicitor who had been acting for the Opponent had been struck off the roll and that another solicitor acting for the Opponent has died.

In the circumstances, and particularly having regard to the fact that the Opponent was under the impression that an appeal had been lodged, I think that, notwithstanding the gross delay in the matter, the motion, so far as paragraph | is concerned, must be dismissed.

However, the Claimant seeks an alternative order that such security as this court thinks fit should be given in respect of the costs of the appeal. I propose to make that order. I will stand the matter down in the list to enable counsel to bring in short minutes, by consent if possible, or alternatively for Mr King to bring in the precise orders which he seeks.