FARROW MORTGAGE SERVICES PTY LIMITED (IN LIQUIDATION) v BOSNJAK SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA 15 February 1993 [1993] NSWCA 93 Mahoney JA. This is an application on motion of a slightly unusual nature. It asks primarily that the hearing dates for an appeal, namely 23 and 24 February 1993, be confirmed. The papers show merely that there is an appeal before this Court and that the dates for hearing were fixed, as I am informed, some time in October last. The question is whether the hearing which has been fixed should proceed on that date. The court has been informed merely that an application for legal aid was made by the second defendant, John Bosnjak, in relation to the appeal and that the application has been refused. The court has been informed that no appeal has been brought against that application and that no appeal will be brought. An application has been made on behalf of Mr Bosnjak to the Law Society of New South Wales for the provision of legal assistance in relation to the matter. The court has had before it the solicitors who were appearing for Mr Bosnjak, Sly & Weigall, and Miss Tran who has asked leave to appear asamicus curiae for Mr Bosnjak, and it is through the statements from the Bar table made to me by these parties that the information has been provided to the court. Prima facie, nothing has been shown why the hearing should not proceed on the dates in question. I appreciate that, the solicitors for Mr Bosnjak having determined to withdraw from the case and a notice of ceasing to act being filed in court today, it will be necessary for him to obtain or consider obtaining legal assistance in relation to the matter. There will be a period of a week or so for this to be done. I am informed that the attitude of the Law Society as to providing assistance will be known in the next day or so. In the circumstances I see no reason why at this stage the date should be vacated. Prima facie the appeal should proceed. The matter has been pending for a considerable time and as I have said the date for the hearing of the appeal was fixed some time ago. If, on the day the matter comes before the court, there is any sufficient reason in justice or otherwise why the matter should not proceed, then that matter can be put to the court on that date. But I think it would be premature to cancel the hearing of the appeal merely upon the basis of the matters that have been put to me from the Bar table. If an application is to be made to the court on that date for a further adjournment of the hearing of the appeal, then no doubt proper evidence will be put before the court on affidavit so that any adjournment application can beconsidered; but at the moment there is no basis why the hearing should not proceed on the dates which have been fixed. In the circumstances, therefore, the effect sought to be achieved by paragraph 1 of the present notice of motion has been achieved. Paragraph 2, the raising of the stay upon the execution of the judgment, I understand not to be pursued in those circumstances. 2 UNREPORTED JUDGMENTS The question whether this application was necessary and whether the costs incurred in respect of it should be awarded can I think best be dealt with by the court dealing with the appeal when it has all of the facts relating to the matter before it. I merely indicate that no order is made upon the notice of motion. I stand the notice of motion over to the court dealing with the appeal on 23 and 24 February and commit to that court the power to deal with the costs of the present motion. I direct that any documents and communications necessary to be served or sent in relation to the matter can be sent to Mr Bosnjak at his business address. Orders accordingly.