HOWARD v COLLIER [1996] NSWCA 256

HOWARD v COLLIER

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA and ABADEE AJA 2 September 1996

[1996] NSWCA 256

Sheller JA. This is an application by notice of motion filed on 25 July 1996. The claimant, Mrs Ellena Howard, seeks, amongst other things, leave to appeal from the decision of Dunford J of 22 February 1996.

Mrs Howard's application is supported by affidavits of 17 July and 25 July 1996. The matter has a history before the Court which, in the circumstances, I do not regard it as necessary to go over in detail. However, on 6 May 1996 Cole JA, dealing with a notice of motion in the proceedings, set out some of the background material of what has occurred since Dunford J gave his decision. The view was taken correctly that a notice of appeal which Mrs Howard had filed was incompetent, and hence the reason for this application.

I have read closely the judgment of Dunford J which, if I may say so with respect, it seems to me to be entirely correct. In addition to the defence to the plaintiff's statement of claim which was struck out, it emerges that the defendant filed a cross-claim. His Honour observed that none of the matters in the cross-claim, even if proved, could constitute a defence to the plaintiff's claim for possession in whole or in part.

His Honour ordered summary judgment, and dismissed an appeal from Master Malpass, striking out Mrs Howard's amended defence and giving leave to enter judgment. Some stay was granted, but again, I do not think it is necessary to examine that in any detail.

In my view, none of the material that has been advanced in Mrs Howard's affidavits or from the Bar table gives any ground for leave to appeal from Dunford J's decision. In the course of Mrs Howard's submissions to the Court, reference was made to the fact that, on 16 August 1996, the cross-claim was dismissed. That judgment is not a matter that is before the Court or arises on the occasion of this application.