RYLEGROVE PTY LTD v FATIMI PTY LIMITED [1995] NSWCA 407

RYLEGROVE PTY LTD v FATIMI PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 27 March 1995

[1995] NSWCA 407

Mahoney JA. This matter comes before the Court in rather unusual circumstances and it is proper that I record what happened. An appeal was lodged on 24 August 1994 purporting to be appeals from decisions of Mr Justice Young, Mr Justice Hodgson and Master Macready. That appeal was brought on the face of it by a company Fatimi Pty Limited as appellant and it nominated as respondent only the company, Rylegrove Pty Ltd (I am informed that the names should be reversed). It is in relation to that notice of appeal and the significance of it that the present application arises.

I am informed that in the proceedings below the parties were Fatimi Pty Ltd as plaintiff, Rylegrove Pty Ltd, a company described as Holdings Pty Ltd and Mr Bryant as three defendants. Rylegrove was the original defendant and Holdings and Mr Bryant were subsequently added as defendants by the order of the court below. That was the position of the proceeding so far as the parties were concerned below. I do not have the judgments appealed from or the orders from which the appeals are brought and it may be proper to say parenthetically that a notice of appeal brought against the orders of two Judges and a Master in the same notice of appeal may require consideration. But that matter is not before me this morning.

When the appeal papers came before the Registrar it would appear that the Registrar quite properly drew attention to the fact that the appeal appeared to have been wrongly constituted. Ordinarily, and I put aside special cases, when an appeal is brought all of the parties below affected by the matter should be parties to the appeal. Some of them may desire only to appear formally to consent or to not oppose the appeal or the orders to be made. But they should be made parties to the appeal and should have the opportunity of appearing and defending such rights as they may have.