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. Handley JA. In this matter Mr Millard moves on behalf of Mr Stephen Lake and Mr Michael Greenwood on a notice of motion filed 21 May 1996 for relief set out in that notice of motion. Paragraphs | and 2 challenge the order made by Powell JA on 4 March 1996 in which he dismissed an application to extend the time for filing a notice of appeal without appointment filed on 22 February 1996. The attempted appeal arises out of the reserved judgment of Craigie QC DCJ published on 22 December 1995. His Honour found that there had been no breach of duty by the defendant as a bailee and he also dismissed claims under the Trade Practices Act and Fair Trading Act. The proceedings arise out of a purchase made by the plaintiffs at an auction conducted on premises owned by the defendant and leased to a tenant which had become insolvent. The plaintiffs attended an auction on the premises in December 1989 and purchased a telephone systeminstalled by the tenant for $2,500. Some months later the plaintiffs not having removed the whole of that equipment, the balance was removed by the defendant and lost or destroyed. Judge Craigie having found a verdict for the defendant nevertheless assessed damages against the possibility that his decision on liability might be reversed on appeal. He assessed these at $1,000. The first steps to challenge that judgment were taken on 22 February 1996 when the notice of appeal and a notice of motion seeking an extension of time for filing the notice of appeal were filed. The last day under the rules for filing an appeal was 16 February. There were difficulties 2 UNREPORTED JUDGMENTS in obtaining instructions from the second plaintiff, Mr Greenwood, because he had proceeded to South Africa and could not be contacted. After the last day for filing a notice of appeal had passed the first plaintiff decided to institute an appeal despite the absence of instructions from the second plaintiff. The notice of motion came on for hearing before Powell JA on 4 March 1996. At that stage the only claimant who had given instructions to the solicitors for the appellants was Mr Lake. Both the solicitors and Mr Lake had been unable to contact Mr Greenwood. In those circumstances Powell JA held that the proceedings had been instituted without authority and he declined to extend time. His Honour also considered that the orders sought should not be made having regard to the probable need for the claimants to provide security for the opponent's costs of the appeal and bearing in mind the amount of $1,000 which the trial judge had assessed as the plaintiff's damages. No steps were taken to challenge this decision until 21 May 78 days later. More significantly perhaps the evidence reveals that contact was not made with Mr Greenwood until 22 April when Mr Lake telephoned him in Johannesburg. The same day Mr Greenwood rang Mr Whittakerthe solicitor having the conduct of this matter and instructed him to proceed with the appeal. There was a delay of some six weeks between the decision of Powell JA and the first effective contact between Mr Lake and Mr Greenwood and between Mr Greenwood and Mr Whittaker, and then a further four weeks elapsed before the present motion was filed. The result overall is that the present notice of motion was filed 95 days after the last day for filing a notice of appeal from the decision of Craigie DCJ. Mr Millard who appears for the claimants accepts, as indeed he must, that the judgment of Powell JA was correct at the time it was given on the first ground accepted by his Honour, namely the absence of any evidence that the claimant Michael Greenwood had instructed solicitors to commence proceedings in this Court on his behalf. Mr Millard however submits that the damages as contingently assessed by Craigie DCJ and the necessity, if the opponent presses its rights to security for costs, for the claimants to provide security are not proper grounds for refusing to cure the procedural defaults which existed when the proceedings came before Powell JA. Speaking for myself I consider that the latter two criticisms have force. However the claimants are in the position where they must accept that the decision of Powell JA on the first ground was correct at the time it was given. In order to meet this situation the notice of motion in paragraph 3 seeks an original order from this Court for an extension of time in which to lodge a notice of appeal. In that regard the claimant faces the long history of procedural defaults to which I have referred so that at the time the notice of motion was filed they were some 95 days out of time. The delays between the decision of Powell JA on 3 March and the first contact with Mr Greenwood referred to in the evidence have not beenexplained. The Court might be able to guess at the explanation, but no explanation has been given. Equally significant and perhaps more serious is the further delay between the receipt of instructions and the filing of the notice of motion of 21 May 1996. Bearing in mind the serious difficulties which the appellants will face in the appeal on the question of damages and on liability, the procedural defaults I have referred to, the lack of any satisfactory explanation for them, the circumstance that the transaction giving rise to this litigation involved an investment of $2,500 which is said, on a basis that the Court cannot properly assess, to attract a verdict in their favour of $60,480 or $45,000, and the necessity before this appeal could URJ LAKE v GROSVENOR PLACE PTY LTD (Handley JA) 3 be prosecuted for the claimants to provide security either for the costs of the appeal or perhaps for the costs of the appeal and the trial, I have reached the conclusion that the proper exercise of the discretion of this Court would be to refuse the relief sought in mercy on the appellants. I would therefore propose that the notice of motion be dismissed with costs. Sheller JA. I agree that the application for review must fail. On the application which is now made to extend the time for filing a notice of appeal, ordinarily, I would be disposed to allow some indulgence where there are difficulties in obtaining instructions from overseas clients if the delays are satisfactorily explained. However, as emerges from the facts in this case as Mr Justice Handley has set them out, there has, since the judgment of Mr Justice Powell, been further delay which I regard in the circumstances as gross and which is unexplained. That being so I would not now, in the light of lack of any explanation of delay, be prepared to extend the time for the filing of a notice of appeal. Accordingly, in my opinion, this application should be dismissed with costs. Cole JA. I agree with the reasons of the Presiding Judge and Mr Justice Sheller. Handley JA. The order of the Court therefore is notice of motion dismissed with costs. Orders accordingly. Counsel for the claimant: C J Millard Solicitors for the claimant: Corrs Chambers Westgarth Counsel for the opponent: J A Trebeck Solicitors for the opponent: W P McElhone and Co