BERRY v ADVANCE BANK AUSTRALIA LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA 26 June 1995 [1995] NSWCA 44 Mahoney JA. This is an application to strike out an appeal for failure to pursue it with due diligence. The court has in the affidavit of Mr Rummery of 23 June 1995, an explanation in whole or in part as to why the appeal was not pursued strictly in accordance with the terms of the rules. I accept that explanation. A draft index has now been filed and Mr Rummery has informed the court that he will be in a position to pursue the matter diligently in the future. In the circumstances, I propose to stand over the present application to the hearing of the appeal with liberty to restore on seven days" notice. If there is unacceptable delay in the pursuit of the appeal, then the matter may be restored to the list. Otherwise the matter will no doubt be dealt with for example, as far as costs are concerned, upon the hearing of the appeal. The costs of today will be reserved to the court dealing with the appeal. Orders accordingly.