ZAMORA v ROUSSOS [1995] NSWCA 535

ZAMORA v ROUSSOS SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

KIRBY P 20 March 1995

[1995] NSWCA 535

PRACTICE — time — Court of Appeal — appeal without appointment taken to be discontinued — application to revive appeal — whether power under rules — whether inherent power — whether should be exercised — held: Inherent power exists — appellants let in to prosecute appeals — observations on changing approaches to Rules of Court as to time.

Kirby P. Before the Court is an application for extension of time, in effect, to bring an appeal. The extension arises by reason of the default, as it is accepted, of the claimants to file a notice of appeal within time provided under the rules.

The facts are that Loveday J, in the Common Law Division of the Supreme Court, on 2 November 1994, entered judgment in favour of the opponent in the sum of $1,265,732.40. An application for a stay of execution of the judgment was made. His Honour provided a stay. He did so upon terms that the claimants pay to the opponent the sum of $550,000.00. That sum was duly paid by the solicitor for the claimants on 24 November 1994.

On 29 November 1994, the claimants filed in the Registry of the Court of Appeal, a notice of appeal without appointment. In accordance with Pt 51 r 5(2) SCR, where such a notice of appeal without appointment is filed and the appellant does notIn this case, although the evidence placed before me in the affidavit of Mr Gregory Kathner, solicitor for the claimants, is rather thin, there are four reasons why I consider that the extension sought should be provided:

(1) The time default is rather short, at least by the experience of this Court in dealing with such matters. It amounts to no more than four or five days. No actual prejudice is demonstrated by the opponent, save for the prejudice of being kept out of the balance of the judgment moneys by the proposed appeal;