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. This application has been made necessary by the claimant's failure to comply with the requirements of the Act and the rules. I therefore propose that the claimant be ordered to pay the opponent's costs of this motion and summons including the costs of Mr Sproule. They are my reasons. Kirby P. I agree. Powell JA. I also agree. IRELAND:There is a bankruptcy notice served which time has been extended to comply. Mr Einstein has told me that they will consent in the Federal Court. Handley JA. I think it should be formalised, if Mr Einstein has that attitude. I think there should be a stay granted until further order of the Court. 2 UNREPORTED JUDGMENTS EINSTEIN:I have those instructions. Kirby P. The orders of the Court are therefore as Mr Justice Handley has provided with the additional order providing for a stay. Orders accordingly.