SWE-LAND ENTERPRISES PTY LTD v VENTURE INDUSTRIES PTY LTD [1989] NSWCA 203

SWE-LAND ENTERPRISES PTY LTD v VENTURE INDUSTRIES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, MAHONEY, PRIESTLEY JJA 6 November 1989

[1989] NSWCA 203

Samuels AP This is an application for an extension of time within which to file a summons for leave to appeal in a building case in which by an order there were separate trials of liability and of damages. The first of these trials has taken place. Judgment was given on 28 September 1989. The time for the lodging of a summons for leave to appeal therefore elapsed on 13 October 1989.

When the matter first came on this morning there was no evidence of any kind on the file from the claimant in support of the application. But upon counsel's application we adjourned the matter until 1.15 this afternoon to enable some evidence to be furnished. That evidence from the claimant's solicitor shows that on 6 October he instructed counsel to seek an adjournment before Cole J, of the further conduct of the proceedings in order to give the claimant an opportunity to consider an appeal. That application was rejected.

It appears that nothing else was done in the claimant's camp until counsel wrote a letter on 25 October 1989 in which he pointed out that something must be done if the line was to be held. Following that letter an application was made for the relief to which I have earlier referred.

In my view there is no material before the Court which justifies the delay. The claimant it is true indicated comparatively early, that is to say on 6 October, that an appeal was being considered. When a stay or adjournment was then refused, no further indications were conveyed to the opponent, which then expended them and effort in preparing for the second leg of the matter, namely the contest about damages. It is of course obvious that the burden lies on the claimant to justify the failure to act within time, and in my opinion in this case that burden has not been discharged.