STANTON v REIBELT [1997] NSWCA 292

STANTON v REIBELT

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

REGISTRAR Jupp 22 September 1997

[1997] NSWCA 292

Registrar Jupp. on 28 July 1997 Justice Handley heard a Notice of Motion seeking the payment out of some judgment moneys which were being held in a solicitor's trust account. On that day he remitted the question of costs of an earlier Notice of Motion and the costs reserved from default appointments in 1996 for me to consider

The Notice of Appeal in this matter was filed on 9 August 1996 and the matter has a long history of appointments before the Registrar. This is somewhat surprising because the original appointment to settle the appeal index appeared to proceed rather smoothly. A date for the filing of the Appeal Books was set as 5 November 1996 and other directions were made.

The Appeal Books were not filed by 5 November 1996 and the matter was listed for a default conference on 21 November 1996. The history thereafter is set out in paragraphs 13 to 16 of the affidavit of David Hugh Loveband sworn on 29 May 1997. As well as the non compliance (to file the appeal books) by 5 November 1996, there was also further non-compliance of an extended compliance date on 6 February 1997. I have been advised that the Appeal Books have been filed today and that they will be served in the near future.

The costs that I have to determine, firstly, are the costs of the default conferences on 21 November 1996 and 5 December 1996.

The default conferences were only listed because the appellant failed to file the Appeal Books by the due date. It is now clear that the reason why the Appeal Books were not filed is that certain documents that were required for the Appeal Books were not available to the appellant's new solicitor. The former solicitors for the appellants were claiming a lien over certain exhibits. That was ultimately resolved against the former solicitors in proceedings that were heard before me earlier this year. I required Michell Sillar to lodge the required exhibits with the Registry so that the Appeal Books could be prepared. However, the reasons for failing to file the Appeal Books were not communicated to the respondents prior to the default conferences. If in fact a letter had been sent to the respondents informing them of the reasons for failing to file the Appeal Books; and if a letter had been sent to the Registrar explaining the delay, then a revised compliance date could have been set without the need for the default appointments.