WALL v WALL [1994] NSWCA 336

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

HANDLEY JA 14 February 1994

[1994] NSWCA 336

Handley JA The court is faced with cross-motions from the parties. The underlying appeal is from the decision of Master Windeyer, as he then was, in proceedings under the De Facto Relations Act. In those proceedings the present respondent, Mrs Wall, was substantially successfully and obtained an order that the appellant's half interest in the former family home be transferred to her. Her notice of motion filed on 3 December 1993 seeks, in prayer 1, an order for summary dismissal of the appeal and, in prayer 2, an order that the supplementary notice of appeal be struck out on, what I would call, procedural and formal grounds and, prayer 3, that the appeal be expedited and prayer 4, that the appellant be ordered to provide security for costs.

Mr Wall's cross-motion seeks an order that this Court sit at Lismore in order to hear the appeal.

As I indicated at the outset of these proceedings, the court does not encourage applications for summary dismissal or stay on the grounds that the appeal is vexatious, nor does it encourage procedural applications directed to striking out some, but not all, of the grounds of appeal. The Court's experience is that applications of this kind normally take up a substantial amount of court time, result in substantial costs being incurred, and that, in, each case, the time and the costs incurred represent a substantial part of the time and costs that would be incurred in the full hearing of the appeal. Accordingly, the Court's practice for many years has been to adjourn motions of this kind until the hearing of the appeal because the court that hears the appeal will be in a better position to deal with such motions. Accordingly, I order that the notice of motion of 3 December insofar as it seeks relief claimed in prayers | and 2, be adjourned to the hearing of the appeal.