MALAN vy SILVAS [NO 2] SUPREME COURT OF NEW SOUTH WALES KirBY P 26 August 1991, 26 August 1991 [1991] NSWCA 184 PRACTICE and PROCEDURE — Court of Appeal — unrepresented litigant — desire for access to unincumbered property — writ of fi fa issued by District Court in respect of judgment debt — held: Order made varying the operation of the District Court order to permit claimant to raise up to $12,000 to pay legal costs of appeal. Kirby P Before the Court are motions referred to in reasons given by me earlier today in the proceedings between Mr Malan and Mr Silvas. By his motion, Mr Malan seeks an order annulling, in effect, the writ issued by Davidson DCJ on 24 June 1991 which restrains his use of his interest in the land comprising folio identifier 39/3/351 being Lot 39, s3, deposited plan 751 in the Municipality of Auburn, known as 9 Livingstone Road Lidcombe. It appears that such land is held by Mr Malan as registered proprietor as a joint tenant with his wife. It seems that it is unencumbered. By virtue of the order of Davidson DCJ, Mr Malan cannot have access to his interest in the land for the purpose of raising upon it the funds necessary to provide for the costs of his appeal to this Court. Mr Malan has sought legal aid. The Legal Aid Commission has refused legal aid. He appealed but the appeal was dismissed. As I have observed today and on previous occasions, Mr Malan would be at a marked disadvantage in prosecuting his appeal to this Court by reason of the fact the he is unrepresented, his first language is Romanian and he is unfamiliar with the procedures of the Court and the requirements for prosecution and presentation of the appeal. Clearly it is in his interests, probably in the interests of the opponent, and certainly in the interest of the Court and the due administration of justice that he should be legally represented in the appeal, if at all possible. Accordingly, it is desirable to make provision so that he can have access to his property if his wife as joint tenant consents and if he desires to raise the funds for that purpose, ie for paying for the printing of appeal books and for the fees of a legal representative. The orders which I therefore make, which orders are made with the knowledge and agreement of counsel for the opponent, are: 1. Vary the operation of the order of Davidson DCJ so that the claimant, John Malan, will, subject to the consent of the other joint tenant and of any mortgagees or any other persons who have an interest in the aforesaid property, be entitled to lodge in respect of the aforesaid land a mortgage for the purpose of raising a sum of $12,000.00, upon condition (a) that the amount so raised be paid immediately to a solicitor of his nomination and (b) that such sum be disbursed by such solicitor solely for the purposes of the payment for appeal books, payment of the 2 UNREPORTED JUDGMENTS solicitor's disbursements and counsel's fees and other costs reasonably incurred in connection with the appeal. 2. Order that any such solicitor consult with the Registrar of the Court of Appeal for the purpose of securing the agreement of the Registrar to any such documentation as is necessary to achieve the purpose of order No 1. 3. Order that the costs of the motion be costs in the appeal. WHEELHOUSE: Could the amount of $12,000.00 be "$12,000.00 only?" My client is concerned that more moneys might be mortgaged and he is concerned that the security be limited to $12,000.00 as a maximum sum. KIRBY: I think $12,000.00. I will alter that to be up to $12,000.00, that is the limit. MALAN: Their costs they said have been $83,000.00 which they sent to me. That was District Court, this would be Supreme Court. KIRBY: I have made the orders and I do not propose to alter them. They are they orders of the Court. The claimant appeared in person. Counsel for Opponent: JS Wheelhouse Solicitors for Opponent: Ternes and Salier