LAKE MACQUARIE CITY COUNCIL -v- MORGAN & MORGAN -v- VITIS -v- ALLEN & ALLEN -v- JOY & JOY -v- SIMPSON & SIMPSON -v- MICHILIS & MICHILIS [1992] NSWCA 128

LAKE MACQUARIE CITY COUNCIL -v- MORGAN & MORGAN -y- VITIS -v- ALLEN & ALLEN -y- JOY & JOY -v- SIMPSON & SIMPSON -v- MICHILIS & MICHILIS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA 28 September 1992

[1992] NSWCA 128

Meagher JA. In this matter the claimant, who was the defendant below seeks orders pursuant to Part 1 rule 17A of the Supreme Court Rules that certain grounds be struck out as being incompetent. When I say certain grounds, I mean certain grounds of the supplementary notice of appeal. They are grounds 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13 and 28 of the supplementary notice of appeal.

The litigation, which was very extensive, was the subject of one judgment by Loveday J given on 15 May and another one given by his Honour on 13 July. The supplementary notice of appeal on most points is certainly in time and appeals against what his Honour held on 13 July. As far as what his Honour decided on 15 May is concerned, however, the appeal, in the paragraphs I have named, seems to be out of time.

In order to reach this conclusion one simply has regard to section 101 rule I(a) of the Act. It seems to be beyond argument that the order of Loveday J given on 15 May was a judgment within the meaning of section 101(1)(a). An appeal lay as of right for twenty eight days thereafter. That appeal was not availed of.

There is no explanation in my view of the delay made in instituting an appeal from anything his Honour decided on that occasion. The grounds I have numbered are therefore incompetent and therefore should be struck out.

The defendant/claimant has set out some submissions in a document entitled "'Defendant's submissions in support of a strike out motion' which I have found very useful and the bulk of which seems to me to justify in general what the defendant/claimant says. I think an appeal on those grounds should have been instituted at an earlier date and there has been noexplanation of the delay. Secondly, that in any event to allow those grounds to stand or to give the plaintiff leave to amend by adding those grounds out of time would be to embrace a futility, which this Court is reluctant to do.