BALTIC SHIPPING CO v GEOFFREY PHILLIP MERCHANT and ORS [1993] NSWCA 19

BALTIC SHIPPING CO v GEOFFREY PHILLIP MERCHANT and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 9 August 1993, 9 August 1993

[1993] NSWCA 19

Clarke JA The claimants, who are respondents to a number of appeals involving the Baltic Shipping Co, the opponent, have sought orders that the leave granted to the opponent to appeal from the judgment and orders of Mr Justice Carruthers be rescinded or alternatively other and perhaps less draconian orders made.

The fundamental basis for the application is that leave was granted upon the basis that the amount of the judgment together with costs totalling in all $874,291 should be paid into court. There is a difficulty with this case insofar as the actual orders made when leave was granted do not suggest that leave was only granted upon terms that the amount be paid.

There are, however, statements in the reasons of the court, which were given by the learned President, which could be thought to suggest that the court had intended that a sum of this order should be paid as a condition of the order actually made. However, I do not think it is necessary for this Court to concern itself with the possible ambiguity in the earlier reasons, for at the start of the proceedings today Mr Street, who appears for the opponent, indicated that the notice of appeal had not been filed in the matter until this morning. Insofar as leave was granted on 5 July it was incumbent upon the opponent to file its notice of appeal within fourteen days. This it did not do and it was therefore necessary for it to seek an extension of time in which to file its notice of appeal. It has sought that extension from the court today and after discussion concerning the prior history of the case it was suggested that the court would grant an extension of time provided the moneys referred to in the orders made on 5 July, less the sum of $15,000 which has already been paid into court, be paid or a bond provided.