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. The court is informed that the appellant does not desire to amend the notice of appeal; his claim is generally to the effect of what I have said, that grounds 2 to 7 in the notice of appeal if upheld will be sufficient to enable the appeal to be held and the judgment to be set aside. That is a matter the appellant must make good at the hearing. If the appellant fails the appeal will fail. As I have said, no request has been made for amendment of the notice of appeal. A number of matters may be remarked upon. First, the application was made on the basis that the appeal was not competent. I am not sure that a notice of appeal which is defective in the way alleged affects the competency of the appeal in the sense referred to in Ptl5 rl7A. The competency of the appeal prima facie depends upon matters other than the defective nature of the notice of appeal. However, that matter has not been argued and it is not necessary for the court to rule upon it. I express no opinion as to the construction of that particular rule. 2 UNREPORTED JUDGMENTS But the notice of appeal having been explained as it has been, then the application prima facie fails. It has not been suggested for the applicant that if the matter set forth in grounds 2 to 7 of the notice of appeal be established that would not be sufficient to warrant the upholding of the appeal. On that basis the application to dismiss the appeal as incompetent must on any view of r17A fail. The second matter that warrants remark is this. If an objection was to be taken to the competency or the form of the notice of appeal one would have expected that that objection would have been taken either by a telephone call between the solicitors or by a letter from the respondent's solicitors to the appellant's solicitors pointing out the apparent defect in the notice of appeal and seeking clarification of the position. Apparently no communication passed between the solicitors in this regard prior to the motion for dismissal of appeal as incompetent being filed and the matter has proceeded to the present stage, apparently without the parties asking one or the other: What is the basis of the application and what is in effect the status of grounds 2 to 7 of the notice of appeal and the reliance placed upon them. I do not formally address criticism to the parties involved. There may be circumstances which would justify what is being done. No sign of this appears on the evidence before the court but short of calling upon the parties for formal explanation I do not think that criticism should formally be recorded. However, it seems strange that an application of this kind, going merely to the form of the notice of appeal and the effect of it, should proceed to this stage without the parties having attempted between themselves to clarify the position. As the matter stands the application in my opinion must fail. The question arises as to what order for costs should be made. The court has heard the parties in relation to the matter. In my opinion, the appropriate order to be made (it is not one which is completely appropriate but one which seems to be more appropriate than any other order) is that the costs of the present application be costs in the appeal. In saying this I would record that in my opinion the order which is now made does not disturb the orders for costs made on previous occasions when the matter has been before the court. In my opinion, subject to what I have said, the application should be dismissed. The costs of the application should be costs in the appeal. Clarke JA I agree. Meagher JA I also agree. AT A LATER STAGE: Mahoney JA: The court notes that in addition to the matters to which I have referred the parties desire the court to deal with a notice of motion by the appellant seeking that the order made by the trial judge, that the first defendant pay the plaintiff s costs, be stayed until the determination of the appeal. The motion seeks other ancillary relief. By consent, the orders are that that order be stayed until the determination of the appeal or further order. If the respondent desires to seek other relief in relation to that order then it may in the ordinary way apply on motion supported by affidavit.