PRESTIA v AKNAR [1995] NSWCA 378

PRESTIA v AKNAR

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA 24 July 1995

[1995] NSWCA 378

Cole JA. This is a summons for an order pursuant to Part 51 rule 4 seeking an extension of time in which the claimant may lodge an appeal from the judgment of Holt DCJ given on 19 April 1995.

These proceedings originally commenced in the Supreme Court. The claim for relief before this Court was a defendant, and the two opponents, Atila Aknar and Andre Soussa, were the plaintiffs in those proceedings. They sought damages for breach of the provisions of similar deeds which had been entered into between Mr Aknar and Mr Soussa with a company, the obligations of which were guaranteed by the claimant Mr Joseph Anthony Prestia. Judgment on liability was given by the Supreme Court on 6 July 1992 and the matter was remitted to the District Court for assessment of damages. The damages action did not come on for hearing until 19 April 1995.

Shortly prior to that time, namely, on 27 March 1995 the solicitors acting for Mr Prestia filed a notice of ceasing to act. As appears from a judgment of Patten DCJ dated 20 June 1995, to which I will later refer, his Honour accepted that the non-appearance of Mr Prestia at the hearing assessing damages before Holt DCJ was due to Mr Prestia's beliefthat the matter had been settled, there having been some discussion about that between the parties in March/April 1995. It is in those circumstances that the matter proceeded ex parte before Holt DCJ.

His Honour entered a judgment in favour of each of Mr Aknar and Mr Soussa against Mr Prestia in the sum of $170,868. That sum in each instance was made up of a principal sum of $95,000 payable under the deed, interest of $58,368 and the sum of $17,500 said to be for loss of use of a motor vehicle. After judgment was given Mr Prestia sought to challenge it. He apparently took legal advice and that advice presumably was to move the District Court to set aside the judgment. A notice of motion to achieve that effect was issued on 11 May 1995. On 17 May the time by which an appeal as of right to this Court could have been brought expired. On 20 June 1995 Patten DCJ heard the notice of motion which he dismissed. On 30 June, after obtaining further advice from senior counsel, the summons before me was brought.