WEST v SMITH [1989] NSWCA 231

WEST v SMITH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP 27 November 1989

[1989] NSWCA 231

Samuels AP This matter has a long and involved history. It appears to have commenced with the death of Mr West's mother, who in her Will left to him one half of the money standing to her credit in her bank account and elsewhere. Mr West appears to have taken that to mean that thereafter no transactions could be conducted upon the bank account by the executor who was his father and who was entitled to the balance of the estate. His father died after probate had been granted I gather, and Mr West inherited his estate, which presumably included part of his mother's estate. Mr West then took proceedings against a vast number of defendants who appear as far as I can tell to be those who were creditors of his mother's estate and who, in the ordinary course, had received payment. I think Mr West then sought summary judgment or purported to obtain summary judgment. The matter came before Master Monaghan who, if there was a summary judgment, set it aside, and struck out the statement of claim as disclosing no reasonable cause of action. There was an appeal to McInerney J by Mr West. That appeal was dismissed.

Since then Mr West has come to this Court seeking various forms of relief, none of which is cognisable as I understand the law. He has been told on many ocasions by the registrar that if he wants to challenge McInerney J's judgment, which I might add was delivered on 22 April 1988, he must file a summons for leave to appeal, it being an interlocutory judgment, together with a motion for extension of time. This he has not done.

Until the matter last came before the court there was merely a notice of motion filed which referred to the summons which had not been filed, and which sought other relief which frankly I find impossible to understand. The summons has now been filed. I have read its contents to those at the Bar table. It does not seek leave to appeal. It merely purports to seek some kind of substantive relief and is not in form consistent with the rules and ought to be struck out. It follows to my mind that the motion cannot stand and that must also be struck out.