FARROW MORTGAGE SERVICES PTY LTD (IN LIQUIDATION) v ANDRIES GASE [1993] NSWCA 94

FARROW MORTGAGE SERVICES PTY LTD (IN LIQUIDATION) v ANDRIES GASE

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 5 July 1993

[1993] NSWCA 94

PRACTICE & PROCEDURE — dismissal for want of prosecution — non-appearance of solicitor or parties — solicitor ceases to act — held: Stay lifted — appeal dismissed.

Kirby P. On 12 March 1993 Cole J delivered his decision in this matter in the Commercial Division of the Supreme Court. He entered judgment in favour of Farrow Mortgage Services Pty Ltd (In Liquidation), and against Andries Gase and Madison Hilltop Park Pty Ltd.

On 5 April 1993 Mr Gase and Madison Hilltop Park Pty Ltd, filed and served a notice of change of their solicitor. Thereby the former solicitor, Mr Goldberg, ceased to act for them. Mr Tony Simons commenced to act on their behalf.

On 6 April 1993 Mr Gase and Madison Hilltop Park Pty Ltd made application in the Division for a stay of execution of the judgment of Cole J pending the determination of an appeal to this Court. On that day, Rogers CJ CommD granted a stay of execution of the judgment upon terms that application be promptly made to this Court for expedition of the hearing of the appeal. This was duly done on 8 April 1993. On 3 May 1993, when the application was returnedbefore the Court, expedition was granted upon terms that within twenty-eight days Mr Gase and Madison Hilltop Park Pty Ltd should provide security in the sum of $7150. The Court ordered if no security be provided, the present claimant, Farrow Mortgage Services Pty Ltd (In Liquidation) could have leave to apply to the Court for the striking out of the appeal for want of prosecution, and/or for an order that the stay be lifted.

To this date, according to an affidavit of Mr David Dowling solicitor which has been read before me this morning, no security has been received by Farrow. A letter has been placed before the Court from Mr Simons in the following terms: