MULTIPLEX CONSTRUCTIONS (NSW) PTY LTD AND ANOR v DALEGROVE PTY LTD [1992] NSWCA 165

MULTIPLEX CONSTRUCTIONS (NSW) PTY LTD AND ANOR v DALEGROVE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 20 July 1992

[1992] NSWCA 165

Mahoney JA This is an application which comes before the Court to strike out a notice of appeal on the ground of want of prosecution. The matter has been before the court before on at least one occasion. The decision appears to have been given by Hodgson J on 4 December 1990 and, while some steps have been taken towards the prosecution of the appeal - for example an appeal index was filed on 17 May 1991 - the matter is significantly in default so far as the preparation of the matter is concerned.

Evidence has been given of the service of the present application upon the company by service upon Mr Michael Edwards and Mr Edwards, who purports in the manner to which I shall refer to be a director of that company, has communicated with the solicitors for the applicant and has indicated that he received the documents.

Prima facie the appeal is in a position which would warrant it being struck out for want of prosecution.

There is, however, before the Court a letter dated 16 July 1992. That is a letter written on notepaper of Dalegrove Pty Ltd and signed on its behalf by Michael Edwards as director and Cynthia Jenner as secretary. The letter is addressed to the Registrar of the Court of Appeal. The letter claims the company is unrepresented. It states that Mr Edwards is a director of the company and "will not be in Sydney on July 20, 1992 and will be unable to appear". He says he will not be back in Sydney until 7 August 1992. He requests that the matter be stood over until his return. No reason is given in the letter or otherwise for the state of the prosecution of the appeal.

In those circumstances, I think the appropriate order to be made is that the appeal be struck out for want of prosecution. However, I will direct, in view of the matters that have been referred to in the letter of 16 July 1992, that the order be not taken out, so as to, effectively, strike out the notice of appeal until an appropriate date after 7 August 1992.