ASSOCIATED STEAMSHIPS PTY LIMITED v VISSCHER [1996] NSWCA 24

ASSOCIATED STEAMSHIPS PTY LIMITED v VISSCHER SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P 17 June 1996

[1996] NSWCA 24

Mahoney P. This is an application to strike out the appeal which has been filed in this proceeding. It is, if I may use the term in a sense which is generally understood, a holding appeal, that is, there were no firm dates fixed for settling of the papers.

There has been a non-compliance with the rules. Application was made to strike out the appeal. I do not think that the striking out of the appeal would be justified. The reasons why the rules were not complied with are set out in the affidavit of Stephen Frederick Groop, 14 June 1996. They disclose a less than satisfactory procedure in relation to the matter, less satisfactory than normally would be expected from the solicitors involved. But the Court appreciates that from time to time accidents do happen. The circumstances there set forth, although they do not provide a justification, at least provide some explanation of what has been done. I do not think that, in the circumstances, what has occurred justifies the striking out of the appeal.

Mr Perrignon, for the applicant, has prepared short minutes of orders. The first four of these are not contested and I would be prepared to make orders in terms ofthose paragraphs. Argument has taken place as to the fifth proposed order, namely that the opponent pay the claimant's costs of the motion. It has been said that the costs are not warranted because attention was directed to the matter before the notice of motion was filed. However, in the circumstances, I think it was appropriate that the application be made and that a proper explanation of the situation be obtained on affidavit. In the circumstances, I am prepared to make the order in paragraph 5. I therefore make the orders set out in the short minutes of order which I shall initial and place with the papers.