CAUSLEY and ANOR v COUNTRYSIDE (NO 3) PTY LTD and ORS [1994] NSWCA 45

CAUSLEY v COUNTRYSIDE (No 3) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 12 December 1994

[1994] NSWCA 45

Mahoney JA This is an application for extension of time for filing a notice of appeal. The case, in so far as counsel have been good enough to put the matter before me, appears to involve a claim by a vendor of land against a trustee of a unit trust for breach of contract in respect of the sale of the land. It appears from what counsel has said that the trustee wrongly repudiated the purchase and that the vendor is entitled to damages.

The company is, it would appear, not able to pay all of the damages and, accordingly, the vendor has made claim against the holders of the units in the unit trust. The essential question is whether, and to what extent, they are liable.

It appears that the matter was dealt with at various times by the learned trial judge and judgments were given, I am informed, on 20 April, 1 May, 31 August and during September 1994. The final orders were made in September 1994 and involved orders that there be judgment for the plaintiff against the trustee in the sum of $1,201,537.13. Provision was then made for the liability of the various unit holders.

The essential point to be determined on the appeal is, as I understand the matter, the liability of the unit holders. Had the notice of appeal been filed in time the appeal would have been able to proceed. It would not be struck out as being a pointless appeal. I think there is enough substance in the matter to warrant the trustee, and therefore the unit holders, pursuing the particular point should they desire to do so. The appellant here in question is one of the unit holders.

The question then is whether a sufficient case has been shown for the delay and whether the court should extend the time for the filing of the notice of appeal.