KARAM v KOLIOS [1996] NSWCA 293

KARAM v KOLIOS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P and PRIESTLEY JA 8 July 1996

[1996] NSWCA 293

Mahoney P. The Court is of the opinion, in this matter, that leave to appeal should be granted. It is of this opinion principally because of the s 52 point. The judge has ordered, in effect, that the proceeding already filed will be effective as the proceeding if the notices be served in accordance with par 1 and the subsequent paragraphs of the judge's order. That seems a utilitarian sort of order in that the costs of starting a further proceeding will be avoided. But at the moment the Court does not see that that is a valid exercise of any available power and on that basis, principally, feels that leave to appeal should be given.

It would draw the attention of the parties, particularly the insurer, to the desirability of avoiding further costs. It may be that if a notice is given in accordance with the s 42/43(A) requirements and then a subsequent proceeding is brought, that may be sufficient to bring the matter before the Court for trial. The question therefore may be whether it is worthwhile for all of the parties to have the i's dotted and the t'scrossed on an appeal and to incur costs involved in dealing with the matter in that way. However, that is a matter which the parties will have to consider.

The order that the Court feels it should make at this stage is that leave to appeal is granted. The costs of the application will be costs in the appeal.

Orders accordingly.