DALEY INVESTMENTS PTY LTD v MELACARE INDUSTRIES OF AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA 26 June 1995 [1995] NSWCA 112 Mahoney JA. This is an application for, as it is styled, leave to file a notice of cross-appeal in a matter in which an appeal has already been filed against a judgment of Hodgson J given on 24 March 1995. The form of the cross-appeal that is sought to be filed is referred to in the affidavit of Mr David John Hoggett of 8 June 1995. The draft document is annexed to that affidavit. The question arising is whether it is necessary, for the purposes of Pt 51 r 13 or otherwise, to file a notice of cross-appeal in order to raise matters that have been adverted to in that draft notice of cross-appeal. I must confess that I am at the moment in a state of doubt as to whether it is necessary to raise the matters by way of cross-appeal. Judgment has been given by Hodgson J against the appellant. It has lodged a notice of appeal in relation to a number of matters. His Honour, in the course of his judgment, said in effect that if he was wrong in deciding against the appellant then he would have decided other issues raised in the judgment in the manner that he hasreferred to in his judgment. It is against those last-mentioned matters that the notice of cross-appeal is desired to be filed. As I have said, I am not sure that a notice of cross-appeal is necessary in order to raise those matters in that no orders were made pursuant to the findings that were or would then be made. However, obviously it is desirable that the parties be in no doubt as to whether the matters referred to in the notice of cross-appeal may be raised on the appeal and they should be in no doubt but that the relevant evidence relating to those matters should be in the appeal papers in order that, in due course, the matters can be dealt with finally upon the hearing of the appeal. If and insofar as a notice of cross-appeal is necessary for that purpose, I am of the opinion that leave should be given to file it. In dealing with the matter summarily in that way, I am conscious of the matters which Mr Libling has delineated precisely as to the specific grounds of objection to the application. It is no disrespect to his concise argument if I do not deal with them one by one. But in the circumstances I think that it is appropriate that the matters referred to by Mr Lever be before the court on the appeal. By the orders that are now made, the court will avoid the necessity to re-argue at the hearing of the appeal whether a notice of cross-appeal was necessary in order that they be able to be raised. In all the circumstances I think that such an order should be made. Mr Lever, I think you, having raised the matter for your own self-protection, the costs of the present application should be paid by you. I will give leave to the applicant to file a notice of cross-appeal, in the form of the document annexed to the affidavit of Mr Hoggett and filed in these proceedings, within seven day from today. The costs of this application to be paid by the applicant. 2 UNREPORTED JUDGMENTS Orders accordingly.