FRUGTNEIT v STATE BANK OF NEW SOUTH WALES LIMITED [1996] NSWCA 195

FRUGTNEIT v STATE BANK OF NEW SOUTH WALES LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 3 June 1996

[1996] NSWCA 195

Sheller JA. This is an application for an order dismissing an appeal by Mr and Mrs Frugtneit for want of prosecution. The application came before Handley JA on 27 May, 1996. On that occasion the opponents, Mr and Mrs Frugtneit did not appear and his Honour made the order asked for. That order has not been taken out.

Since it was made Mrs Frugtneit, who has appeared both for herself and for her husband, approached both Mr Bartrop, the opponent's solicitor, and the Registrar. It appears that there were particular reasons why Mrs Frugtneit was not present in Court on 27 May, 1996 and in particular for one reason or another she was not aware that the application was to be heard on that date.

Mrs Frugtneit has appeared, and has handed up a statement in the form of an affidavit which has not been sworn but which I admitted as exhibit A. I should say Mrs Frugtneit was prepared to swear that affidavit in the form of exhibit A but it seems to me simpler to treat the affidavit as a statement by Mrs Frugtneit of what the present position is.

Mrs Frugtneit has indicated to me that she will now diligently prosecute the appeal. She has attached to the statement a form of draft index which she is prepared to file today in the Registry.

Mr Bartrop, who appears for the claimant, has very fairly pointed out that if Mrs Frugtneit had been present in Court last Monday it is very likely the order would not have been made to dismiss the appeal, but rather to impose terms for its diligent progress.

Accordingly in the circumstances it seems appropriate to make the following orders:

1. Vacate the order of Handley JA on 27 May, 1996 dismissing the appeal for want of prosecution.