AUSTIN v NEW SOUTH WALES PERMANENT INSURANCE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and CLARKE JJA 29 May 1989 [1989] NSWCA 8 Practice and Procedure — application for extension of time in which to file appeal — no question of principle. Samuels JA The claimants had a motor vehicle insured under a policy with the opponent. They traded in that vehicle and acquired another. They wished to transfer the policy to that other vehicle. An employee of their brokers made that request to the opponent. The opponent asked for information, some of which the brokers supplied. The opponent's representative then said that he would seek the remaining information from the motor dealer which, on one view of the evidence, he did. At that point the evidence in respect of the transaction peters to a halt, save that the policy was tendered by the opponent - I might add over the strenuous objections of counsel for the claimants, whose only hope indeed it was, and that, on one view, provides that on request a policy will be transferred from one vehicle to another. Another view is that it will not be done unless notice in writing is given. Yet a further possible view is that the provision for giving notice is not a condition precedent to the transfer. A representative of the opponent gave evidence and said, after some extraordinary confusion during his examination in chief: "My company will transfer an existing policy holders policy from one vehicle to another." McDevitt DCJ who tried the claim by the claimants, who were then defendants to an action which was settled - this proceeding concerns only their claim over against their insurers - dismissed the claim for indemnity upon the ground, it would seem, that the transaction involved a rescission of the existing contract, an offer by the claimants to take out a further policy and no evidence of any acceptance, and hence no contract. That does not appear to be a matter which was debated at the trial but I may well be wrong about that. At all events the learned judge says nothing of the question of transfer, if I may so describe it, which was the way in which the claimants endeavoured to put their claim. What then happened was that the claimants took out a notice of appeal which was forwarded to their Sydney agent for filing on 5 September 1988, two days within time. It is said in an affidavit that notice required amendment. It is not stated in what respect. But if it followed the lines of the notice which was ultimately filed, I can well understand that it may have been rejected. Then some weeks went by until on 10 or 11 October another notice of appeal, together with a summons for leave to appeal, was filed. The summons for leave to appeal was a procedural step which was unnecessary. What was really required was an application for an extension of time within which to file an appeal, that step finally being taken towards the end of January of this year. 2 UNREPORTED JUDGMENTS The documents which have been filed on behalf of the claimants are singularly ill-drawn. My feeling is that the matter went astray at a fairly early stage, and there being no evidence of prejudice which would be sustained by the opponent if time were extended, save the prejudice which attends upon the matter not being finalised, I think that this is a case in which justice requires that the claimants should have an opportunity to file and contest their appeal. I might add that the present notice of appeal should be amended and I am not myself convinced that the two fresh grounds offered to us this afternoon are really a vehicle for the issues which I would have thought the plaintiffs wished to tender. However, in the circumstances I would extend the time for filing an appeal from McDevitt DCJ's judgment to 4 pm on Wednesday 31 May 1989. As to the question of costs the claimants have come seeking a concession. The matter, so far as the documents are concerned, has not been well handled and it seems to me that the claimants must pay the costs of the application. Accordingly the formal orders I propose are that the summons for an extension of time in which to appeal is allowed. The time is extended until 4 pm on Wednesday, 31 May 1989 and the claimants must pay the opponent's costs of the application, save for those of 17 April and 20 March.