LAKE v GROSVENOR PLACE PTY LTD [1996] NSWCA 312

LAKE v GROSVENOR PLACE PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, SHELLER JA and COLE JA 3 June 1996

[1996] NSWCA 312

PROCEDURE — extension of time for notice of appeal — explanation of delays — no question of principle.

The plaintiffs attended an auction in December 1989 and purchased a telephone system from an insolvent tenant of the defendant for $2,500. Some months later the remainder of the equipment which had not been removed by the plaintiffs was removed by the defendant and lost or destroyed. On 22 December 1995 the trial judge found that the defendant had not breached its duty as a bailee and entered judgment for the defendant, but assessed damages contingent on a successful appeal at $1,000. The notice of appeal should have been filed by 16 February 1996. One of the plaintiffs was in South Africa and could not be contacted. On 22 February 1996 the notice of appeal was filed along with a notice of motion seeking an extension of time. On 4 March 1996 the application for an extension of time was dismissed by Powell JA as the proceedings had been instituted without the authority of one of the appellants, and bearing in mind the assessment of damages and the possible need to provide security for costs. Contact was not made with the second claimant until six weeks later, and a further four weeks elapsed before the further motion was filed, with the result that there had been a total delay of 98 days. It was contended that the contingent damages and possibility of having to provide security for costs were not proper grounds for refusing to cure the procedural defaults.

HELD, dismissing the motion: The decision of Powell JA refusing an extension of time was correct when given. The lengthy delays since had not been explained, and in all the circumstances the extension sought should be refused.