GRIFFITHS v McDONALD [1990] NSWCA 80

GRIFFITHS v McDONALD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SAMUELS JA 11 February 1990

[1990] NSWCA 80

Samuels JA. Bryson J made certain orders in an application for construction of a will and the final orders were made on 31 October 1990. Unfortunately there appears to have been some confusion in the mind of the solicitors acting for the party who wished to appeal, the present claimant, and two affidavits which are sworn and filed display a discrepancy, one asserting that the orders were made on 30 October and the other on 31 October.

The claimant, rather late in the day but still within time, had drawn a notice of appeal which, unfortunately again, showed the date upon which the orders were made as 30 October. That being the case, the last day for filing a notice of appeal was, if my arithmetic is correct, 27 November. Had the date of final orders been 31 October, the last date for filing the notice of appeal would have been 28 October, which was the day on which the claimant's solicitor's city agents endeavoured tofile it. The clerk in the office, however, rejected it as being out of time, as indeed it was on the face of the document itself.

There is now no dispute between the parties that the material date was 31 October so that in truth the attempt to file the notice of appeal on 28 November was within time. Strictly, therefore, this application which seeks an extension of time in which to file the notice of appeal is unnecessary.

The matter came on in the last motion list when the application was opposed and it is opposed again today. The opponent is unable to suggest any prejudice if the appeal is now filed. Of course, as I have said, it seems to me that it was not out of time, a circumstance which I would have thought would have been apparent to the solicitors for the opponent.