GERLACH v BORGLUND [1997] NSWCA 122

GERLACH v BORGLUND SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

REGISTRAR Jupp 15 September 1997

[1997] NSWCA 122

Registrar Jupp. In this matter the Notice of Appeal was filed on 22 November 1996 from a decision of Newton DCJ of 20 September 1996. A Notice of Motion seeking an extension of time to appeal was required. That motion was also filed on 22 November 1996 and it was made returnable on 2 December 1996. On 2 December 1996 the motion was adjourned to 3 February 1997 and costs were reserved.

On 3 February 1997 the motion was further adjourned to 3 March 1997 with an order that the claimant pay the opponent's costs. Certain directions were also made in respect of affidavits. On 3 March 1997 the extension of time to appeal was granted by consent on the condition that $40,000 security for the judgment (plus costs and interest) below was paid into Court with a self executing order to the effect that if this was not done that the appeal would otherwise be dismissed.

On 11 March 1997 a cross-appeal was filed. The appointment to settle the appeal index occurred on 8 April 1997 when the appeal index was settled and directions made. Those directions were not complied with, ie an amended draft index and an amended notice of appeal were not filed. The appeal books were not filed and they remain unfiled.

The matter was listed for a default appointment on 5 June 1997 when the timetable to file the appeal books was extended to 22 August 1997 with a direction that if there was non-compliance that the matter was go into the dormant appeals call-over on 29 August 1997. The matter was included in the dormant appeal call-over on 29 August 1997 but no parties appeared. The mater was listed for a further default appointment on 4 September 1997 when the solicitor for the appellant advised the Registrar that she was unable to obtain instructions from her client. The matter was then referred to Court today to determine whether the appeal should be struck-out for want of prosecution.