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. The essential reason for not filing the notice of the appeal in time has been, as it was suggested, that although advice was sought from counsel in relation to the matter there was a delay in the obtaining of that advice. In addition, there was - and I put this matter delicately - some dispute between the solicitors as to which solicitor should have the carriage of the matter. That has been referred to by counsel for the applicant, and it has been said to contribute to the delay. The application has been opposed by the vendor of the land, the plaintiff. But no prejudice is suggested which would not have occurred had the notice of appeal been filed in time. The other party which is before me, one of the other creditors of the trustee - I use the term in the widest sense - also takes the attitude that it neither opposes nor consents to the extension, although obviously it would be happier if the appeal did not proceed. It is difficult to apply the general principles here involved. Those principles are not significantly in doubt. Where there is a ground of appeal fairly arguable and there has been delay in filing the notice of appeal in time in circumstances such that the prejudice to the other parties can be remedied, ordinarily the court will grant an extension of time. 2 UNREPORTED JUDGMENTS l appreciate the extent of the delay which has taken place in the present matter. It has been said that the vendor's loss was quantified as early as 1988. But, in the circumstances, I do not feel that it would be a proper exercise of the discretion to refuse an extension of time as far as the appeal is concerned. That order, were it to be made, should be made I think on terms that the costs of the present application be paid by the applicant, unless there be something in this matter which indicates to the contrary. I say "were that order to be made" for this reason. There is coupled with the present application an application for a stay of proceedings on the judgment which has been given by Brownie J. I think it would be appropriate if I formally withheld the making of the order for extension of time until I understand better the nature of that application and determine what should be the fate of it. That may be relevant in determining whether the final order for extension of time should be granted. However, I have felt it appropriate to deal with the extension matter and the issues relevant to it so the parties may have available to them my reaction in relation to that matter before they come to the other matter. I will therefore withhold the making of a final order in relation to the extension of time for lodgment of the appeal until I deal with the order for stay of execution upon the judgment.