McKENZIE v VILLATA [1995] NSWCA 285

McKENZIE v VILLATA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 13 March 1995

[1995] NSWCA 285

Priestley JA. This is a notice of motion by a respondent to an appeal seeking an order that the appeal be dismissed for want of prosecution.

The respondent to the appeal was the plaintiff in proceedings against two defendants, and succeeded in getting judgment against one of them. That defendant, Mr McKenzie, filed a notice of appeal. The evidence before the court discloses that following the filing of the notice of appeal there was an appointment for the settling of the appeal papers.

At first the appellant was represented by a solicitor, but the solicitor has since filed a notice of ceasing to act, and nothing has happened so far as carrying the appeal further is concerned.

Accordingly, the respondent filed the notice of motion, which is now before the court, and first came before the court on 6 February, when there was no appearance for the appellant. The matter was before the court again before Mahoney JA on 27 February, when questions were raised by his Honour concerning the effectiveness of service upon the appellant of the notice of motion to strike out the appeal. His Honour then stood the proceedings over until today, suggesting, with a view to avoidingunnecessary expense, that if the Registrar had power to do so he might be the person to apply to for an order for substituted service upon the appellant.

That suggestion was followed up and, on 7 March 1995, the Registrar made orders that the notice of motion now before the court, together with the original of a letter dated 1 march 1995, be taken to be served upon the appellant on 3 March 1995, and that the proper address of the appellant in these proceedings for the purpose of Supreme Court Rules Pt 9 r 4 is and has been at relevant times unit 3/56 Nicholson Parade, Cronulla, in the State of New South Wales.