SHALHOUB HOLDINGS PTY LTD and ORS v DONNELLY and ORS [1998] NSWCA 208

SHALHOUB HOLDINGS PTY LTD v DONNELLY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P and COLE JA 4 May 1998

[1998] NSWCA 208

Mason P There are aspects of this application that are cause for considerable concern. Nevertheless, despite everything being said that I think can be said in support of it by Mr Hilbery who appears for the claimants I do not think that it can succeed.

A trial took place in 1992 before Young J which resulted in judgment for the defendant. At that stage Bull Son and Schmidt acted for the plaintiffs who are the claimants before this Court. A notice of appeal was filed in July 1992. Not long after that Bull Son and Schmidt ceased to act and another firm took over.

The appeal proceeded in a very dilatory fashion. There were letters from the Registrar making inquiries as to what was happening. After some considerable prompting, the appeal papers were eventually settled in April of

1993. Still the matter did not appear to progress. In November 1994 Mahoney JA heard a motion seeking to have the proceedings struck out for want of prosecution. That was dismissed on the undertaking of the claimant's solicitor to prosecute the appeal with due diligence.

An order for security for the costs of the appeal was made and pursuant to that $10,000 was paid into court. The callover for the appeal occurred on 5 April. Around that time there was a further change of solicitors. The appeal books had still not been filed by that time. Eventually they were filed and served on 28 April 1995. The matter was put in the general list in May 1995.

No doubt because of the sorry history of delay, it was listed for hearing more promptly than would have occurred with the matter standing in the general list at that point of time. In May of 1996 the appeal was listed for hearing on 30 and 31 July 1996.