DONNA MARIA BATISTE v ICLE FINANCE CORP LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA, HANDLEY JA and Cripps JA 8 March 1993 [1993] NSWCA 21 Priestley JA. ICLE Finance Corp Ltd was the first defendant in proceedings brought against three defendants by Miss Batiste. Studdert J struck the first defendant out of those proceedings. Miss Batiste filed a notice of appeal against his order. The first defendant has filed a notice of motion to strike out the appeal as incompetent. Miss Batiste has filed a motion for extension of time to file a summons for leave to appeal against Studdert J's order, and also a draft summons seeking such leave. All matters have been heard together. The first defendant's application to be struck out from the proceedings first came before Master Greenwood after an earlier history it is unnecessary to detail. He refused the application. On appeal, Studdert J upheld the first defendant's contention that there was no possibility of the plaintiff by estoppel maintaining her case against the first defendant. We are of the view that it is arguable that on the materials before Studdert J he should not have struck out the first defendant from the proceedings in a summary way. In our opinion the position is that the matter which the first defendant relied on in its application to be struck out from the proceedings was materialwhich, if summary proceedings had not been taken, would have constituted matter to be pleaded by way of defence and to which it would have been open then to Miss Batiste to reply by alleging an estoppel. Thus, for the first defendant to succeed in its application it had to show that there was no evidence on which the reply might succeed. The events that took place in the course of the proceedings in the Federal Court before Davies J when he had before him an application and statement of claim raising much the same matters commenced by Miss Batiste against defendants including the first defendant, amounted to material which, as we understand it, was probably not taken into account by Studdert J and which had it been taken into account may have been seen by him as evidence upon which the estoppel claim by way of reply by Miss Batiste was arguable and could be sustained. In the matters that have been touched on some rather difficult questions of law are involved, one of them being the degree of clarity which with a representation must be established before it can be held to ground an estoppel or, alternatively, if instead of looking at the matter under the heading of estoppel by representation, the alternative category of estoppel by convention is looked at, the question of the sufficiency of evidence which must be available before a conclusion about estoppel by convention can be reached. The court is of the view that these questions warrant the examination that can be made of them against the background, that will be available in an appeal, of a full understanding of precisely what material was before Master Greenwood and Studdert J and that leave is, therefore, appropriate. We point out for the benefit of Miss Batiste that following the granting of leave it will be necessary 2 UNREPORTED JUDGMENTS for the appeal papers to be settled and the only materials that can go into the appeal papers are materials that were in evidence before Studdert J, which presumably include everything which was in evidence before Master Greenwood. The orders that need to be made as a result of our conclusions are, on Miss Batiste's application, that her notice of motion for the extension of time for the filing of her summons for leave be granted; that the document entitled Draft Summons for Leave to Appeal be treated as a summons for leave to appeal filed pursuant to our leave to file it out of time; and that leave on that summons be granted. The court notes that there is already in the file a notice of appeal. It bears the marks of non-legal draftsmanship and it covers probably more matter than is necessary to go into a notice of appeal; but any questions about how much of it ought to be argued in an appeal can be left until the appeal itself. We think the court ought to order that the notice of appeal already filed be treated as the notice of appeal leave to file which is granted today. So, Miss Batiste essentially succeeds on her applications. The first was necessary because of the mistake that she made in not realising an application for leave to appeal was necessary, something which was no fault of the opponent first defendant. It will follow from what has been said so far that it is really unnecessary to deal with the notice of motion filed on behalf of the first defendant, which, however, appears to have been properly filed. It seems to the court that the first defendant should be entitled to the costs of that notice of motion in any event even although no other order is going to be made on it. Thus, the only order we make in regard to the notice of motion filed on 19 February 1993 by the first defendant, namely, its notice of motion as claimant, is that the opponent, Miss Batiste, must bear the costs of that notice of motion. In regard to the orders that have been made in Miss Batiste's favour, we are of the opinion that the simplest approach to take is that the costs both of the application for extension of time and for leave should follow the event of the appeal. Those costs are therefore to be costs in the appeal. Orders accordingly.