SANDERSON MOTORS PTY LTD v SINGH [1994] NSWCA 276

SANDERSON MOTORS PTY LTD v SINGH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 12 December 1994

[1994] NSWCA 276

Mahoney J This is an application for a stay of execution of an order made by his Honour Acting Judge Kennedy-Smith. An order was made apparently on 28 October 1994. The circumstances of the case are somewhat unusual. The case involved a Porsche motor vehicle and his Honour made orders (I do not attempt to paraphrase precisely the form of them as set out in his judgment) for return of the vehicle and also for damages for deprivation of it over a period of some years. The damages assessed were $40,000.

An application was made for stay of the execution of the orders. However, when the application came on for hearing it was objected to on behalf of the respondent on the ground that there was little or no prospect of success in the appeal. This objection was based to an extent at least upon the form of the notice of appeal. The notice of appeal as drawn contains only two grounds: one, his Honour erred in the exercise of his discretion; and, two, that the discretion refusing an adjournment miscarried because of a number of matters set out in the notice of appeal.

Mr Stone for the plaintiff, the respondent to the application, has submitted that that appeal is incompetent. That submission would raise interesting questions under the provisions of the District Court Act. When the matter was pointed out to Mr Barry QC for the applicant, he ultimately indicated the desire of his client to move for an amendment to the notice of appeal; that course was taken upon the basis that it was, as I indicated, rather unlikely that he would have obtained a stay in support of a notice of appeal in its present form. If that application for amendment were made and succeeded, it would preserve the existence of the present appeal. If the notice of appeal as at present drawn were to be withdrawn, that would bring about the result that there would be no pending appeal and any appeal sought to be brought would be out of time. Mr Stone indicated he would oppose any such amendment. I therefore indicated if it was desired to apply to amend the notice of appeal, I would favourably consider standing over the present application to enable it to be dealt with at the time when the application for amendment of the notice of appeal was made.