WRAY v COOPER [1994] NSWCA 353

WRAY v COOPER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, CLARKE and MEAGHER JJA 25 July 1994

[1994] NSWCA 353

Mahoney AP (MOTION)

This application derives from a judgment given by Cohen J on 9 December 1993. His Honour gave a judgment which he founded both upon the ground of estoppel and upon other grounds. (I state the matter shortly and without attempting to summarise all of the detail of the judge's judgment).

The order that he made was that the statement of claim and the cross-claim be dismissed and he ordered that the defendant pay the plaintiff's costs. A notice of appeal was filed against his Honour's judgment. It is from the form of that notice of appeal that the present application derives.

The notice of appeal in ground | claimed that his Honour had erred in law in finding that the appellant was estopped from asserting the plaintiff's ownership of the horse in question. It then proceeded, in para2 to para7 of the ground of appeal, to allege particular errors in respect of particular findings by the judge. It did not in terms call in question the basic findings by the judge on other matters, that is matters other than the estoppel, but it took points which, as I understand the suggestion, are such that if the points are made good on the appeal then the other grounds on which his Honour found as he did would go.

The notice of appeal is not, if I may adapt a well worn phrase, the highest example of the exercise of the pleader's art. However, that notice of appeal having been filed, this application was then made, based upon the claim that it fell within PtS1 r17A and that the appeal be struck out as incompetent. It was claimed in effect that the only matter appealed from was the estoppel finding of the learned judge and that, nothing else being appealed from, the appeal, if successful, would not upset the judgment: that the appeal did not warrant the setting aside of the judgment. Apparently the matter has been stood over on other occasions and particular orders have been made. The matter comes on for hearing this morning.