PRYOR v WESTPAC BANKING CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 10 December 1990 [1990] NSWCA 148 Mahoney JA This is a matter which comes before the Court in respect of a notice of appeal filed by the appellant, Joan Pryor, in proceedings in which judgment was given for the plaintiff, Westpac Banking Corporation, on 18 July 1990. The notice of appeal proceeds upon the basis that it was an appeal as of right. It is now agreed that there is no appeal as of right and that leave is necessary. The Bank has applied on notice of motion that the appeal be struck out. There appears to be no alternative to that order in view of the attitude taken by both parties and I propose to make that order. However, I should indicate what has happened in relation to the matter. When the matter was called on this morning leave was given without objection to the filing of the summons which the appellant - I shall call her such - Mrs Pryor, desired to file seeking an extension of the time within which she might apply for leave to appeal against the judgment of 18 July 1990 and for leave to appeal against that judgment. As I have said, I granted leave for that to be filed in court and that is now pending before the court. No doubt the purpose of the filing of that was in order to provide a basis for this Court ordering a stay upon the execution of the judgment pending the determination of Mrs Pryor's dispute with the bank as to the correctness of the judgment. The court has been informed on affidavit evidence that bankruptcy proceedings are now either pending or may be brought or pressed. There is evidence before the court, some of which has been subject to objection which I have not determined, suggesting those matters. It was the purpose, no doubt, of Mr Roberts for Mrs Pryor to use the summons to which I have referred as the basis for an application to the court for a stay of execution upon the judgment so that the bankruptcy proceedings could be stayed pending the final determination of the appeal matters in this Court. I have taken the view that the matter requiring leave to appeal is a matter to be dealt with by a court differently constituted and I do not think that I should, by granting an extension of time or dealing with that matter, pre-empt the decision of the court so constituted on that matter. However, Mr Roberts may apply to the court later today or subsequently in relation to the relief sought on that summons. He may even, if he so desires, make an application to the court so constituted for the kins of relief to which I have referred. I have mentioned these matters so that the position can be recorded. But the only order I make at this stage is and can be that the appeal presently filed be struck out and that the Bank have the costs of this application and of the appeal. The form of the summon which has been filed I have placed with the papers and if subsequently today Mr Roberts wants to have it, he can have the file.