WALL v WALL [1994] NSWCA 337

WALL v WALL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 12 December 1994

[1994] NSWCA 337

Mahoney JA This is an application to strike out an appeal for want of prosecution. On 14 February 1994 Handley JA ordered that the appellant provide security in the amount of $5,000 for the stay of proceedings. The amount of $5,000 was to be paid on or before 16 May 1994.

The affidavit of Mr Denmeade, which is before me, indicates that that amount has not been paid. The matter was called over before the Registrar and the appellant did not appear. It appears that nothing more has been done or is likely to be done by the appellant to pursue the appeal.

The matter was called this morning and Mr Wall did not appear. On my suggestion, Mr Hughes, solicitor, for the applicant made some inquiries. He has informed the court that, by telephone, he spoke with Mr Wall who was then in Queensland and obviously did not intend to appear today.

I am satisfied of proper service of the Notice of Motion and the affidavit upon Mr Wall. Indeed, the evidence is that he apparently knew of the application being listed for today because, by the letter, Exhibit A, of 5 December 1994, he required one of the deponents to be present for cross-examination. In the circumstances it does not appear that the appeal will be prosecuted or prosecuted in due time.

I propose, therefore, to make the order as in paral of the Notice of Motion and to direct that the appellant pay the costs of the motion and the appeal.

I will, in the circumstances, Mr Wall appearing for himself, formally reserve leave to him to apply within 21 days from today's date to have the appeal reinstated if there be proper and sufficient reason for doing so. I do not suggest that there is any such reason, but he appearing for himself and not having appeared today, I feel it appropriate to reserve that leave to him. I direct that the solicitor for the applicant address to him by ordinary mail a letter drawing attention to the terms of the order and the leave which I have reserved to him. That letter should be forwarded on or before Wednesday next. I note that I am informed that Mr Denmeade has come from the country today pursuant to the request for cross-examination of him.