MAYDWELL v WFM MOTORS [1994] NSWCA 197

MAYDWELL v WFM MOTORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and COLE JJA 26 September 1994

[1994] NSWCA 197

Mahoney JA This is an application for leave to appeal against a decision of Windeyer J given on 16 August 1994. The court would normally not give reasons for refusal of leave to appeal, but as this matter may go to a court in another country I shall add very briefly some observations in relation to the matter.

The matter derives from a summary judgment given against the defendant. It appears to have been given by Master McLaughlin on 22 October 1993, for a sum of some $3.7 million. No Notice of Appeal was lodged against that judgment, and although various other litigation took place concerning the parties, it was not until August 1994 that an application was made to Windeyer J for an extension of time to enable an appeal to be brought against that summary judgment.

The situation was that following the summary judgment the plaintiff took steps to have the judgment registered in Hong Kong. That registration, or its final registration, was

opposed. The court has been informed that issues in relation to that matter are still pending.

(I say parenthetically that I do not purport to state with precise accuracy what has taken place in Hong Kong. The terms of the legislation in Hong Kong are not before us. It is sufficient that by what I have said I indicate that registration or final registration in Hong Kong has been opposed by the present applicant and that the matter is still pending.)

As I have said. it was not until much later that the application for extension of time to lodge a Notice of Appeal against the summary judgment was brought. Windeyer J, in a judgment of 16 August 1994, refused that application. He did so basically for two reasons. First, he was not satisfied that any proper explanation or sensible explanation had been given for the delay in making the application for, as his Honour described it, leave to appeal out of time. Secondly, he took the view that, even if the application for extension of time to appeal was successful, the applicant would be unlikely to succeed in the appeal against the Master's order. His Honour considered the question of the Contracts Review Act which the applicant had sought to raise and took the view that there was no substance in that application point. His Honour concluded: