TRIDEN PROPERTIES LTD v CAPITA FINANCIAL GROUP LTD [1994] NSWCA 318

TRIDEN PROPERTIES LTD v CAPITA FINANCIAL GROUP LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, MEAGHER and CLARKE JJA 25 July 1994

[1994] NSWCA 318

Mahoney AP There is before the Court this application, a motion for the dismissal of two sets of proceedings.

On 21 September 1992 an interlocutory order was made by Rogers J in these proceedings and a notice of appeal was filed against that order. The order was an interlocutory order and, accordingly, leave to appeal was necessary and no leave to appeal was obtained. That is the first set of proceedings involved.

Secondly, orders were made by way of interlocutory orders by Cole J in the proceedings. The papers placed before the Court indicate that orders were made on 10 November 1992, 27 November 1992 and 4 December 1992. A summons or summonses were filed seeking leave to appeal against those orders, they are the second set of proceedings.

The summons before the Court by the Capita Financial Group is a summons seeking dismissal both of the appeal and the leave to appeal proceedings.

It is plain that the notice of appeal was incompetent; that is not now, I think,:'seriously contested. However that be, it is plain that for lack of leave to appeal that notice of appeal could not proceed. The summonses for leave to appeal theoretically might succeed but the parties are both agreed that time has passed them by and no useful point would be served by proceeding with those summonses. The reason for that is or includes that in September 1993 Cole J made orders by way of final determination of the proceedings in respect of liability; in May 1994 he made orders in respect of damages; and on 8 June 1994 he made orders as to costs. Those sets of orders apparently disposed of the proceedings at trial level.

There has, as I infer, been an appeal lodged in respect of the final orders or judgments of Cole J. But however that be the Court is not concerned with such orders, it is concerned with the two sets of proceedings to which I have referred.