TOIKAN INTERNATIONAL INSURANCE BROKING PTY LTD v PLASTEEL WINDOWS AUSTRALIA PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY J 28 August 1989 [1989] NSWCA 212 Mahoney J This is an application for an order extending until 30 August 1989 the time in which the claimant may institute an appeal from a decision said to have been qiven by Cole J on 19 May 1989. The facts insofar as they are before the court are set forth in the affidavit of Mr Christopher Bruce Brierley of 23 August 1989. Mr Brierley deposes that on 24 November 1987 Yeldham J gave judgment on the liability issue in favour of the first respondent, Plasteel Windows Australia Pty Limited. The claimant, the Toikan Company, appealed to the Court of Appeal and on 13 February 1989 the Court of Appeal allowed the appeal in part and remitted the matter to the Commercial Division to try the issue whether the first respondent took all reasonable precautions to prevent loss, destruction or damage to the property which would have been insured by the policy in terms of condition 9 of the policy. Mr Brierley's affidavit says the retrial was heard by Cole J, who delivered judgment on 19 May 1989 for the first respondent against the claimant. The first respondent is Plasteel Windows Australia Pty Ltd. On 22 May 1989 Master Sharpe, to whom the quantum of the claim had been referred for argument assessed the quantum of the damages at $2,343,511.81. On June 6 1989, apparently during the course of the hearing of a related proceeding, application was made to Cole J to enter judgment in this matter, and his Honour entered judgment in favour of the first respondent against the Toikan Company in the sum to which I have referred. The Toikan Company then lodged a notice of appeal against the judgment. It treated the judgment from which appeal was brought as a judgment of 6 June 1989 and on that basis, as I understand the concession made in this matter, the appeal was filed in time. However when the appeal papers came to be settled the Regestrar indicated, as Mr Brierley's affidavit suggests, that "this judgment takes effect on 22 may 1989". The question has therefore arisen whether the appeal should be against (as I shall desrcibe them) the judgment of the Master given on 22 May 1989, against the judgment given by cole J on 19 May 1989, or against the judgment which his Honour apparently entered on 6 June 1989. If it were against the former judgment of his Honour, then the appeal was lodged out of time. In my opinion it is appropriate that the issue that is raised in ground one of the notice of appeal be properly before the Appeal Court. It appears to be the issue which was in substance the subject of the order made on 13 February 1989. If it is necesary, in order to bring that matter before the court for final decision, that leave be given for lodgment out of time of another appeal, then I think it is appropriate that leave be granted. It is apparant that the Toikan Company desires 2 UNREPORTED JUDGMENTS to contest that issue and sought to do so by the notice of appeal which is presently on the file. In these circumstances in my opinion the appropriate order should by made. I will therefore make orders 1 and 2 as set forth in the notice of motion. Costs 5 of the application to be costs in the appeal.