JA WESTAWAY PTY LTD v BUILDING SERVICES CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 19 October 1992 [1992] NSWCA 116 Mahoney JA This is an application for leave to appeal from a judgment of Campbell J given on 23 December 1991. The material upon which the application is based is contained in the affidavit of Mr Zuur of 25 September 1992 and the material there referred to. Summarised, the position is that in 1987 and 1988 the company, J A Westaway Pty Ltd, carried out building work for a Mr Knowles. A dispute arose out of that work in respect of which a complaint was lodged with the Building Services Corporation or its predecessor in 1988. The matter appears to have been pending since that date. According to the material before me attempts were made to resolve the dispute and, those attempts having been unsuccessful, on 17 June 1990 the relevant body issued a rectification order purporting to be made under s30A of the then existing legislation. Apparently that rectification order was not complied with or at least did not produce the satisfaction that was sought from it and on 11 April 1991 the relevant corporation issued a notice to show cause to the company requiring it to show cause why it should not be dealt with under Pt4 of the Act of 1971, the Act then in question. On 21 March 1990 the relevant Act was repealed. The question that arises is whether the repeal of that Act brought to an end the proceedings which were then being brought against the company. That issue was raised for decision before Campbell J in proceedings in which a declaration was sought that the rectification order of 7 June 1990 and the notice to show cause of 11 April 1991 were void and of no effect. In his judgment of 23 December 1991 his Honour considered those particular matters at length. A copy of his Honour's judgment is before me. His Honour's conclusion was that such a declaration should not be made and the summons was dismissed with costs. What happened following that time appears to be broadly as follows. The view was taken that time did not commence to run for the lodgment of a notice of appeal to this Court against his Honour's judgment until February 1991. Counsel was then briefed to advise, on 9 March 1992, upon the prospects of a successful appeal being brought. That advice appears to have been received on 22 April 1992, a time at which I think the right to lodge an appeal as of right had passed. However that be, consideration was given to whatever that advice was. The court is informed in the affidavit of Mr Zuur that officers of the claimant were of differing views as to whether an appeal should be instituted or whether an alternative course should be taken, namely, that the complaint should run its course at, as it was described, a show cause hearing. Ultimately it was decided not to lodge a notice of appeal and the alternative course to which I have referred was followed. 2 UNREPORTED JUDGMENTS Ultimately orders were made against the company and following those orders an appeal was lodged to, as it is described in the affidavit, the Commercial Tribunal. That matter was listed for mention before the Commercial Tribunal on 25 September 1992. It is, as I infer, still pending before that Tribunal. The question whether the notice on which the orders were made and the appeal to the Tribunal was based was valid will no doubt be the subject of consideration and argument before that Tribunal on the appeal. However, by the present summons filed on 1 October 1992 an extension of time is now sought for the lodgment of an appeal against the judgment of Campbell J. The grounds on which the extension is sought have been stated by Mr Duncan and without attempting to detail the whole of them they include the claim that his Honour's judgment was wrong. I have read his Honour's judgment generally and I am by no means convinced that his Honour was wrong, although of course I express no concluded view upon the matter. It was submitted that no prejudice would result to the opponent, the Corporation, by allowing an extension of time to lodge a notice of appeal. I do not know whether prejudice will result to that Corporation. Nor do I know whether there will be prejudice to the person, Mr Knowles, for whom the work was done. Attempts made to procure the rectification of it by the statutory procedures have been continuing now for some four years or more. When this matter was called for hearing today there was no appearance for the statutory body. Mr Duncan, appearing for the company, invited the court to proceed in the absence of the Corporation and, as he was entitled to do, filed a proper affidavit of service of the application upon that body. He was invited to arrange for an enquiry of the body to determine why the body was not before the court but there were circumstances to which he referred which prompted him not to take that course. I am therefore dealing with the matter in the absence of the body and I do not know from that body whether or not prejudice would result to it or to Mr Knowles. It should be said, therefore, in favour of the company that no prejudice to either of them has been shown. However, in the circumstances, I am not satisfied that this is an appropriate case for the extension of time. There has been no satisfactory explanation as to why the notice of appeal was not lodged or extension of time for the lodging of the appeal was not sought much earlier. It is now many months since the dismissal of the previous application. I do not see why the validity of the notice cannot be raised in the proper way. It may be able to be raised before the Commercial Tribunal. But whether or not this be so I do not think that there is sufficient doubt affecting Campbell J's judgment to require as a matter of justice or even expediency that the time be extended. I have not referred to all of the issues to which Mr Duncan referred but taking into account all the circumstances, I do not think this is an appropriate case for the extension of time. I dismiss the application with costs. Application dismissed with costs.