TYNAN v DAVID TYNAN'S TOWN AND COUNTRY CARPETS PTY LTD (in LIQ) [1997] NSWCA 324

TYNAN v DAVID TYNAN'S TOWN AND COUNTRY CARPETS PTY LTD (in LIQ)

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER and POWELL JJA

26 May 1997

Meagher JA. In this matter there was a default Judgment obtained against Mr and Mrs Tynan on | May 1996. An application to set aside the Judgment and be let in to defend was made and refused by the Registrar. A second application in October last year was made before the Registrar, that likewise was refused. A review of the Registrar's refusal took place on 9 and 10 April 1997 before her Honour Judge Sidis and the Registrar's refusal was affirmed, the application was dismissed.

The duty of the applicants before her Honour was to explain why such an inordinate delay had taken place and demonstrate that there was prima facie evidence of a defence. It is unnecessary to go into details but it suffices to say that the present claimants did not discharge either of those obligations. There was no proper explanation of delay and there was no prima facie evidence of any defence.

There are two present applications, one is for a stay of her Honour's order and the other is for an order of the time for making application for leave to appeal against the order from Judge Sidis be extended.

In my view it follows from the failure of Mr and Mrs Tynan in their application before her Honour that the present applications should also be refused. If the claimants could not explain to her Honour either the delay or the defence they are unable to explain either of those matters to us, in my view both Notices of Motions should be dismissed and with costs.

Powell JA. I agree.

Both notices of Motions dismissed with costs.