LANG and ANOR v KIRKNESS and ANOR [1994] NSWCA 179

LANG v KIRKNESS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 5 December 1994, 5 December 1994

[1994] NSWCA 179

EASEMENT — incursion on rights of owners — delay in seeking leave to appeal — intervening hearings and events — long listing of litigation — held: Matter not appropriate for leave to appeal.

Kirby P This is an application for leave to appeal from a decision of Windeyer J given as long ago as | February 1994. It requires the exercise of the Court of two discretions. The first is to provide an extension of time within which to make the application. The second is to provide leave to appeal.

I would be inclined to grant the former because I think that in this long saga of litigation it is only just that an opportunity should be had to ventilate the case for leave as, indeed, it has been ventilated. I take into account the great time which has elapsed since the judgment of Windeyer J, the history of the litigation which preceded it, the intervening proceedings in this Court and the Land and Environment Court, the nature of the application, ex A which has been placed before the Court, and the issue which Windeyer J resolved. His

Honour acknowledged that the issue now remaining is one of controversy but to it he provided his best answer. I am not convinced that his Honour was wrong. Iam therefore of the view the Court should bring this part of the litigation to a close.

I would refuse leave to appeal and order that the claimant pay the opponent's costs.

Mahoney JA In my opinion this is not an appropriate matter for leave to appeal. I would refuse leave, with costs.

Clarke JA I would also refuse leave with costs.

The summons for leave to appeal is refused. The claimant must pay the opponent's costs.

Opponent appearing in person Counsel for the Claimant: P R Callaghan SC / J B Maston