HOGAN v BASEDEN [1997] NSWCA 150

HOGAN v BASEDEN

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

REGISTRAR Jupp 11 August 1997

[1997] NSWCA 150

Registrar Jupp. In this matter a notice of appeal with appointment was filed on 1 July 1997 from a decision of Acting Justice Cowdroy of 18 December 1996. That notice of appeal was filed without leave or consent and in the ordinary course the Court of Appeal would not proceed to deal with the appeal unless an extension of time to appeal was granted and the appeal was validated.

A notice of motion was originally filed seeking an extension of time to appeal on | July 1997 and an amended notice of motion has been filed in court today. The amended notice of motion also seeks expedition of the appeal.

The proceedings before Acting Justice Cowdroy were heard in November 1996 and judgment was delivered on 27 November 1996. On that day certain orders and declarations were made and those orders were varied on 18 December 1996.

The parties are residents of a property at 42 Samuel Street, Ryde. The proceedings in the Equity Division sought orders for the sale of that property and division of the proceeds of sale to be divided 50/50 between the plaintiff and the defendant. The outcome of the proceedings before Acting Justice Cowdroy is set out in the orders as varied on 18 December 1996. The Court declared that the plaintiffs are entitled to a one half interest in the relevant property and that it be held as tenants in common with the defendant as to a one half share.

The Court ordered that the necessary steps be taken to ensure that the plaintiffs became registered proprietors.

The order that seems to have caused the difficulty and is the cause of the application seeking the extension of time is order (4) which is:

That the premises known as number 42 Samuel Street, Ryde, should not be sold without the express written consent of the defendant or of the defendant's legal guardian other than either of the plaintiffs.