MICHAEL v MITSOPOULOS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA 20 July 1992 [1992] NSWCA 154 Mahoney JA. This application arises out of a claim by a plaintiff against its engineer for negligence. The engineer cross-claimed, or brought out proceedings against, the architect. Tam informed on 16-20 March 1992 the proceeding was determined so far as liability was concerned by Rolfe J. On 15 May 1992 his Honour gave judgment against the engineer and no order, based on negligence, was made against the architect. Proceedings have now been taken to determine by a reference the damages to be paid by the engineer to the plaintiff. On 10 July 1992 Cole J referred the matter for assessment of damages and I am told the assessment is to come on on 6 October 1992. The present application arises because, when the engineer came to consider his position, and particularly his position in relation to the architect, there was, as I infer from the correspondence, some doubt as to whether the appropriateprocedure was an application for leave to appeal against the judgment of Rolfe J or a formal appeal. It is not necessary for me to give attention to that matter. The fact is that the notice of appeal was filed out of time. It is alleged by Miss Oakley that the last day for filing was 12 June 1992. It was not filed until 23 June 1992. However, it appears that the notice of appeal was tendered to the court prior to that date, albeit on a date which was then out of time, and it was, rightly or wrongly, rejected by the Court of Appeal registry. The result is, as I have indicated, that the notice of appeal was filed on 23 June 1992 rather than the date which was contended was the last day for filing it. The application presently made is, on the one hand, to strike out the appeal as having been filed out of time and, on the other hand, a cross-motion brought by the engineer for the extension of time for the filing of the notice of appeal. It is, in effect, an application for an order nunc pro tunc that the notice of appeal already filed be treated as filed in time. The only substantial prejudice which has been urged on behalf of the applicant upon the original motion is that, if the appeal is allowed to proceed, then the architect will be, or may prudently require to be, concerned in the assessment of damages. Additional costs and difficulties will no doubt arise from that course which would not arise if the appeal were not allowed to proceed. In my opinion, it is appropriate that the appeal be allowed to proceed. In the circumstances the failure to file in time has not resulted in such prejudice as would make it inappropriate that he, the engineer, be allowed to proceed. I do not think there is anything, on the evidence which is before the court, which would justify the engineer being shut out from such appeal rights as he may have. Whether those appeal rights should proceed by way of notice of appeal is not a matter to which I need give attention at the moment. 2 UNREPORTED JUDGMENTS The result of my conclusions is that the appeal should be allowed to proceed and, accordingly, an order should be made appropriate for that purpose. However, I think it is appropriate that the costs of both applications be paid by the architect as the architect's failure to file the notice of appeal in time has produced the present situation and as that, as I understand it, is not significantly opposed. A notice of appeal filed on 23 June 1992 by the engineer, Mr Mitsopoulos, should be deemed to have been filed within time. I dismiss the application for striking out of the notice of appeal and, to that extent, I grant the orders sought in the second notice of motion which has been filed. The costs of both motions should be paid by Mr Mitsopoulos. Orders accordingly.