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. Around about this time, the then solicitor for the claimants, a Mr Creer, ceased to act. On 5 July 1996 Mr Neville Shalhoub, one of the claimants, delivered a notice of discontinuance of appeal. This was not sufficient to discontinue the appeal. Accordingly the matter was listed before Clarke JA on 9 July. Mr Shalhoub appeared and was given leave to discontinue and an adverse costs order was made. Since that date there have been various processes relating to the determination of the costs of the proceedings below. It was not until February of this year that application was made by the claimants for the reinstatement of the appeal. The basis for the application is that the appeal is perceived to have merit because of evidence that has been placed before the Court. That evidence is of witnesses who were not called before Young J at the trial. I am certainly prepared to assume from having read that evidence, although I stress it has not been tested, that the evidence if it had been called could well have made a difference to the outcome of the trial. Counsel for the claimants frankly concedes that this evidence is not fresh evidence. It was evidence that was available to the claimants at the time of the trial. Indeed the thrust of the application is that this evidence was made known 2 UNREPORTED JUDGMENTS to the claimant's solicitors at the time of the trial and it was through their default that it was not put into proper form or used for the hearing before Young J or an adjournment sought to enable this to have occurred. Although the matter has not been debated, I am prepared to assume, I think it to be the case, that there is no procedural impediment to the reinstatement of an appeal that has been discontinued. Nevertheless this is a case where a conscious decision was taken, notified to the other side, presided over in a hearing before a judge at which no doubt any question of Mr Shalhoub being at a disadvantage through being unrepresented would have been uppermost in Clarke JA's mind. It is also relevant that nothing has been done since July 1996 until the beginning of this year. The evidence indicates that proceedings were commenced late last year for damages for negligence against the solicitors who are alleged by their default to have caused the proceedings to have failed. Mr Hilbery has very frankly and properly drawn that matter to our attention indicating that he fears that in those proceedings there may be an argument by the solicitors that the claimants did not exhaust whatever rights they had to have the appeal reinstated and the judgment of Young J overturned. Nevertheless Mr Hilbery has, while making that concession, pressed the right of the claimants to have reinstatement. Certainly the fact that there may be an alternative remedy against the solicitors is not conclusive to the disposition of the present application. I think nevertheless that the interests of finality and the interests of the respondents to the abandoned appeal are factors to be taken significantly into account. It may be that no identifiable prejudice has been suffered but we are dealing with a case where delay is significant because at the end of the day, the claimant wants a fresh trial at which contestable issues clearly arise. As far as the respondents were concerned, this appeal was consciously abandoned although it has been suggested that Mr Shalhoub may have been ignorant of his right to have had the appeal adjourned as distinct from discontinued. There is not evidence of this and given the lengthy history of delay in the appeal it may well be that an adjournment application would not have been favourably received anyway. The fact remains that the evidence was available as early as the trial. It was certainly available to the claimants and their various solicitors during the time that the matter languished in the pending appeal list. Those factors, together with the other matters I have recounted, leave me in the position that I am not persuaded that this is a proper case to exercise the discretion to reinstate the appeal. I would therefore refuse that motion. There is another motion which in the upshot is virtually consequential, namely an application by the opponents to have paid out of court the $10,000 and any interest thereon that was paid in by the claimants as security for the appeal. It is quite clear and indeed conceded that the costs of the opponents in relation to the appeal would have exceeded the sum and therefore it is proper that that sum should be paid out. Cole JA I agree. I would only add that it seems to me to be of very significant importance that on 4 July 1996 some eighteen months or so before the motion to reinstate the appeal which is now before us was filed. Mr Shalhoub wrote a letter which indicated a conscious decision not to proceed with the appeal but to proceed by alternative action. I agree with the orders proposed. URJ SHALHOUB HOLDINGS PTY LTD v DONNELLY (Mason P) 3 Mason P The orders will be that:- The Notice of Motion filed on 21 January 1998 by Shalhoub Holdings Pty Ltd and Mr and Mrs Shalhoub be dismissed with costs. In the motion filed on 24 April 1998 by Mr Donnelly and Challenge Finance Ltd, O1 as sought in that motion and O3 for costs as sought. It is noted that the other Notice of Motion filed by the last mentioned two claimants is not proceeding.