BROWN AND ORS v AKERMAN [NO 2] [1995] NSWCA 61

BROWN v AKERMAN [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 15 June 1995, 1 September 1995 [1995] NSWCA 61

PRACTICE and PROCEDURE — extension of time — notice of appeal without appointment filed in time — negotiations to settle dispute — summons for leave to appeal against costs order only — advice by counsel as to prospects of appeal — differences between appellants as to desirability of limiting appeal or appealing on all grounds — summons for leave to appeal against costs order only rejected and leave refused — subsequent prompt application for extension of time of seven weeks within which to appeal against substantive orders as well as costs — whether such extension should be refused as (a) inconsistent with the step taken by the litigants in affirming their abandonment of the substantive appeal and confining their summons for leave to appeal to costs; (b) grounded in a confirmed decision properly made on legal advice; (c) grounded in the likely outcome of an appeal; and (d) on the ground of departure from the Rules of Court as to appeals without appointment not followed within time by an appeal with appointment

WILLS, PROBATE AND ADMINISTRATION — capacity — proof of will evidence of hallucinations and mental and physical illness — whether case unarguable — whether extension of time should be granted of seven weeks within which the appellants were out of time to follow a notice of appeal without appointment with a notice of appeal with appointment

Held:

(Kirby P): Extension of time granted but on terms as to costs both of the motion for extension of time and of the earlier summons for leave to appeal. Gallo v Dawson (1990) 64 ALJR 458 (HC); Zeiz v Lindahl, Court of Appeal (NSW) unreported, 12 September 1994; Morris v Public Transport Commission of NSW, Court of Appeal (NSW) unreported, 28 May 1984 applied.