HOWARD v COLLIER [1996] NSWCA 254

HOWARD v COLLIER

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA 6 May 1996

[1996] NSWCA 254

Cole JA. Before the Court today is a notice of motion filed in proceedings number 40173/96.

On 22 February 1996 in an appeal from a decision of Master Malpass, who had granted summary judgment for possession pursuant to Pt 13 r 2, Dunford J affirmed the order of Master Malpass except as to the orders relating to the writ of possession. His Honour granted leave to issue a writ of possession, permited such writ to issue forthwith but ordered that the writ was not to be executed before 21 March 1996.

So far as the material before me extends, and I draw this from an affidavit filed by Ms Ellena Howard of 3 April 1996, some further order was made by Dunford J for the writ of possession to be executed at 12 noon on Tuesday, 2 April 1996. Also according to that affidavit, an application was made to Brownie J for a stay of that order and a stay wasinitially granted until 4 April 1996, but par 10 of Ms Howard's affidavit states that an ex parte application for variation of that stay was made to Brownie J such that the order granting a stay to 4 April was vacated and the stay continued only to 3 April.

Be that as it may, on 3 April there was filed in this Court two documents which apparently commenced proceedings number 40173/96. The first document is entitled, 'Notice of Appeal' and purports to appeal from the proceedings decided on 22 February 1996. That apparently relates to the judgment of Dunford J which bears that date although the certified copy of reasons is dated 5 March 1996.

The second document filed was a notice of motion. That notice of motion in the same proceedings seeks four forms of relief. The relief sought is that:

(1) That the plaintiffs claim for summary judgment be dismissed;