ARNOYA HOLDINGS PTY LIMITED v METWAY LEASING LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 18 March 1996 [1996] NSWCA 23 Priestley JA. This is an application by an appellant to add grounds of appeal to an existing Notice of Appeal which was filed within time, as I gather, after orders were made by Barr AJ on 26 April 1995. That would mean that the Notice of Appeal would have been filed some time before the end of May 1994. The application before me to add further grounds of appeal is dated 5 March 1996 and was filed on 6 March 1996. Some of the history of proceedings leading up to the orders and declarations made by Barr AJ was set out by Sheller JA in reasons given on 17 July 1995 when he refused to order security for costs applied for by the respondent to the appeal. In the same interlocutory proceedings he refused to grant a stay of execution of the declarations and orders made by Barr AJ. I will not repeat the history of the matter as set out by Sheller JA although I have taken it into account in forming the conclusions I have formed in this matter today. I will repeat one paragraph from his reasons, however, towards the end of them, where he said he was satisfied that the appellants had not madea case for an extension of the stay which they had had until that time. He said: Mr and Mrs Campbell's evidence demonstrates that, leaving aside the amount of this judgment and other contested claims made upon them, their liabilities exceed the sworn value of their assets. Their financial situation is such that the enforcement of the orders would not add in any significant manner to their difficulties in prosecuting the appeal. In answer to a claim for a relatively small debt, which initially they acknowledged, they have taken active steps to delay matters by raising defences which either had no merit or which were not prosecuted. I do not regard their appeal as having any real chance of success. I see no reason why the opponent should further be delayed from enjoying the fruits of its victory, such as they are. Ordinarily an application to add grounds to a Notice of Appeal is received favourably by this Court when made in good time before the hearing of the appeal. That is not an invariable rule. Sometimes the nature of what is intended to be raised by the new grounds is such that the Court stands over the application to the hearing of the appeal when there will be a better opportunity than in an interlocutory application for considering whether there is any merit in permitting the amendment. A third class of case occasionally happens when a respondent opposes an application to amend a notice of appeal on grounds such as were raised today along the lines that the amendment has little chance of producing an arguable ground of appeal and a great chance of enlarging the appeal proceedings to no good purpose, and also of increasing the cost involved in preparation of an argument of the appeal. 2 UNREPORTED JUDGMENTS In the light of the history of this matter as set out by Sheller JA, it seems to me that there is a possibility that the present application falls into this last class of case. The fact that that is a possibility led me to think that I should only grant the application to amend if there was material before me indicating that there could possibly be some useful purpose served by allowing the amendments. The material before me was very scanty. It consisted of the judgment of Barr AJ and an affidavit from the claimants" solicitor annexing some correspondence between her firm and the Court of Appeal Registrar and with the solicitors for the opponent respondent. The first of the grounds of appeal which it is sought to add is connected also with the second. These are numbered 8 and 9 of the draft amended Notice of Appeal that is before me. The only material before the court relating to these two draft grounds was a set of orders made by Barr AJ which became Exhibit A in today's proceedings. On the face of these orders it appears that on 4 November 1994 Barr AJ made interlocutory orders on an ex parte basis for four days of a holding character until such time as notice of the application for those orders was served upon the parties to be affected by them. On the face of the orders what happened was something that happens frequently in practice, the obtaining of ex party injunctions on a short term basis because of what is supposed to be the urgency of the matter and the short term basis accommodating the necessity to let the affected parties have notice as soon as possible so they may be heard on the question of whether there should be any order made at the expiration of the ex party order. The Judgment of his Honour was given on 26 April 1995, getting on for the better part of six months after the ex party orders I have been referringto. There is nothing to suggest that any party ever asked his Honour to disqualify himself as a result of having made those orders or complained about the orders having been made. It may, or may not, be the fact that some complaint was made but there is no evidence before me of any such complaint or anything to indicate that any such complaint was made. Grounds 8 and 9, therefore, to my mind, on the material before me, have no chance of success and should not be permitted to be raised at this time. Ground 12 I would similarly conclude should not be allowed to be raised at this time, but for the different reason that its width, vagueness and generality made it quite unsuitable to be allowed to be added, in the circumstances that this case now finds itself in. I would therefore refuse the appellant's application to add grounds 8, 9 and 12 in the draft amended Notice of Appeal. As to the other grounds, namely, 10, 11, 13, 14, 15 and 16, having had a brief opportunity of looking through Barr AJ's reasons, and having heard counsel for the claimant show an arguably sufficient connection between those grounds and aspects of his Honour's reasons for that connection, possibly to provide a foundation for a relevant ground of appeal, I formed the conclusion that, in regard to them, the claimants" application should not be dismissed at this point but be stood over to be dealt with at the same time as the appeal is heard; at that time the Full Court will have a better opportunity than is available to me at the moment to form a firm opinion whether there would be any point in allowing those grounds to be added to the existing Notice of Appeal. URJARNOYA HOLDINGS PTY LIMITED v METWAY LEASING LIMITED (Priestley JA) 3 In reaching that conclusion I have borne in mind that I was informed by the parties that the appeal papers have been settled and there would be no need for any further material to be added to them for the understanding of these grounds. It will, thus, be a matter for the court to consider the possibility of the relevance of these grounds on the existing appeal papers at a time when the matter is fully opened by the appellant before the Full Court. In the result I dismiss the application to amend by adding grounds 8, 9 and 12 in the draft amended Notice of Appeal. As to the remaining grounds I stand over the application to amend the notice of Appeal to the hearing of the appeal. As to the costs of today I order that the claimant pay half of them in any event. As to the remainder of today's costs I reserve the decision of who shall pay them for decision by the Court of Appeal which disposes of the Notice of Motion. Orders accordingly.