XIPOLITAS v AUBURN UNITED PTY LTD [1995] NSWCA 528

XIPOLITAS v AUBURN UNITED PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 27 February 1995

[1995] NSWCA 528

Mahoney JA. This matter comes before the court because, although an appeal was lodged in October 1991 and the index settled in July 1992, no appeal books were filed. The matter was listed before Cole J on 21 November 1994 and, there being no appearance for the appellant, his Honour directed that the appeal be struck out for want of prosecution.

The appellant now applies to this Court for an order restoring the matter to the list, that is, reversing the order striking out the appeal. It appears that a new solicitor had been engaged by the appellant as long ago as the early part of 1994. There had been correspondence with the Government Printing Office in relation to the matter and the preparation of the appeal books had been sought. The matter does not appear to have been followed up with great diligence, but there may possibly have been reasons for this.

In any event, the solicitor deposes to the fact that the notice that the matter would be listed on 21 November 1994 was not sent to that solicitor. The reason for that would appear to be that that solicitor had failed himself to prepare a notice ofchange of solicitor, so that he, and not the previous solicitor, was the solicitor on the record to whom notices should be sent.

The matter seems to have been the subject of less than fully perfect attention on the part of the solicitors involved. I think it is necessary that the matter now be brought to a head. In the circumstance that the notice was not given to the person who was, in fact, then the solicitor, which establishes a proper reason for setting aside the order striking out the appeal which was made on 21 November 1994, I will direct that the appeal be reinstated. However, I feel that something must be done to bring the matter to a head and done in short order.