KAO v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) [1996] NSWCA 290

KAO v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 12 August 1996

[1996] NSWCA 290

Priestley JA. This is a notice of motion for an extension of time within which the claimant may institute an appeal from a judgment delivered by Mr Justice Rolfe on 1 December 1993.

The proceedings before Mr Justice Rolfe involved a number of parties against whom judgments were given at the same time as judgment was ordered against the present claimant. Two of those parties, Mr and Mrs Gilmour, lodged an appeal, the claimant did not. Before me today it has been both proved and conceded that the claimant's non-filing of the notice of appeal within the time limited by the rules was intentional and decided upon after advice from his then solicitors, a firm of solicitors properly described as competent.

The amount of the judgment against the claimant was of the order of four million dollars so I think it legitimate to infer that serious considerationwill have been given to the question of an appeal both by the claimant himself and his then legal advisers.

The appeal by Mr and Mrs Gilmour came on for hearing in May 1994 and judgment was delivered on 24 February 1995. Mr Justice Meagher delivered the main reasons of the Court. He was of the view that Mr and Mrs Gilmour were liable for the amount of the judgment entered against them on a particular basis. In the course of discussing this basis he mentioned another basis that had been argued and remarked that that basis was not available to Mr and Mrs Gilmour but could have been argued by the other parties to the proceedings before Mr Justice Rolfe had they appealed. A key word in his reasons in regard to that other basis was that it was at least arguable that it was available to the other parties to the proceedings before Mr Justice Rolfe.