VELLUE PTY LTD and ANOR v AMERICAN FOODS PTY LTD and ANOR [1996] NSWCA 545

VELLUE PTY LTD v AMERICAN FOODS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA and SANTOW AJA 14 October 1996, 14 October 1996 [1996] NSWCA 545

PRACTICE and PROCEDURE — refusal of application for extension of time in which to file notice of appeal — no real explanation for delay — plaintiff aware of entry of judgment.

Clarke JA There is an application before the Court for an extension in time in which to file a notice of appeal challenging a judgment entered by Waddell J on 22 May 1989. The amount of that judgment is $12,926.37. In broad terms the applicant relies upon the unfortunate circumstances in which the judgment was entered, the failure of the judgment creditor to seek to enforce the judgment during the seven years and criminal proceedings and his illness in the intervening period.

As to the first it would appear that his solicitor went to the Equity Court on the day the matter was listed for hearing and indicated that proceedings which had been instituted by the applicant were not to be pressed. The applicant consented to those being dismissed. The solicitor had, however, overlooked a cross-claim brought by the company sued by the applicant and the legal representatives for that company sought to proceed with the cross-claim.

There appears to have been no good reasons why the cross-claim would not proceed and his Honour in due course directed that it should. He heard evidence and entered the judgment which I earlier mentioned. That occurred, I reiterate, in May 1989. Following the entry of that judgment the applicant filed a notice of motion in the Equity Division seeking a stay of the judgment conditional upon payment of money being made by the applicant. That motion was supported by a lengthy affidavit sworn by the applicant on 23 June 1989.

For reasons which have not been explained, no party appeared before the Court on the return day, that is 24 August 1989, and according to the Court Clerk's record of proceedings, the usual order was made and the parties were ordered to file affidavits explaining non-attendance and to write a letter to the list clerk requesting that the matter be relisted. There, so far as the evidence goes, the matter rested until recent proceedings in the Local Court. They provoked the applicant into making the present application. The judgment entered by Justice Waddell related to an amount of money drawn by the applicant from the company's bank account and his Honour held, and there is no challenge to this holding, that the cheque by which those monies were drawn had been written and signed by the applicant and was unauthorised.