PURCELL v SANWA AUSTRALIA FINANCE LTD [1993] NSWCA 218

PURCELL v SANWA AUSTRALIA FINANCE LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KiRBY P, HANDLEY JA and POWELL JA 25 October 1993

[1993] NSWCA 218

Handley JA. This is an application by Brian Purcell for an extension of time in which to appeal from a final judgment given by Justice O' Keefe on 3 August this year for approximately $700,000.

Within 28 days of the date of that judgment Mr Purcell filed a summons for leave to appeal against interlocutory orders made by Justice O' Keefe on 28 May, and a notice of motion for an extension of the fourteen day period provided by the rules for applications for leave to appeal. At that stage Mr Purcell had an appeal as of right from the final judgment given by Justice O'Keefe and in accordance with established principle he would have been entitled on that appeal to challenge any earlier interlocutory orders which had an effect on the final result. However, that course was not followed.

Subsequently Mr Ireland QC has sought to amend the notice of motion to seek an extension of time in which to file an appeal as of right. In substance, therefore, the application before the Court is to cure a short time default although in form the time default is somewhat greater.

The original notice of motion and summons did not join all the necessary parties and in particular did not join Mr Sproule or Mr Hughes the co-guarantors who were discharged from the proceedings by the order of Justice O' Keefe of 28 May.

Since the matter before the Court involves, in substance, an appeal as of right, and the Court is only being asked to cure a modest procedural and time default, such leave would only be refused if the Court were satisfied that the intended appeal was hopeless.

It is far from clear that the proposed appeal is hopeless. There appears to be matters of substance to be argued. Without expressing any final conclusion I am of the view that the appeal has sufficient prospects of success to warrant an order being made at this stage to cure the default and to allow the appeal to proceed. I would therefore propose that the time for filing a notice of appeal from the decision of Mr Justice O'Keefe of 3 August 1993 be extended to and including Wednesday 20 October 1993.