MAYDWELL v WFM MOTORS PTY LTD [1998] NSWCA 139

MAYDWELL v WFM MOTORS PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

BEAZLEY and STEIN JJA 12 October 1998

[1998] NSWCA 139

APPEAL — Leave to appeal out of time — existence of fresh evidence — whether trial judge improperly exercised discretion or made an error of law.

Beazley and Stein JJA. Ex tempore

This is an application for leave to appeal from a decision of Einstein J in which his Honour refused the appellant leave to appeal out of time from a decision of Master McLaughlin.

The claimant sought to base its application for leave to appeal out of time upon the existence of fresh evidence. During the course of a considered judgment his Honour categorised that evidence into eleven separate categories, and dealt with each category in turn.

In respect of all categories except three, his Honour considered that the claimant had not satisfactorily explained the delay between that material either coming into existence or coming into the possession of the claimant.

We do not see any error in the manner in which his Honour approached that question, nor do we see any error in his Honour's finding that Mr Maydwell had not satisfactorily explained the delay in the material coming into his possession, and in the making of the application for leave to appeal out of time.

That left three categories of documents, identified by his Honour as the seventh, eighth and ninth categories of documents, which did not either come into existence or come into Mr Maydwell's possession until a relatively short time prior to his making application for leave to appeal.

Mr Maydwell, who has appeared on this application in person, placed before the Court those three categories of evidence, and we have had the opportunity to consider them.

In relation to the category of evidence identified as the seventh category, Mr Maydwell relies most particularly on para 22 of the document, which is a statutory declaration of a Mr Ross Alec Jackson, the managing director of Australian Telephone Distributors Ltd. In that statutory declaration Mr Jackson does not identify the relationship between Australian Telephone Distributors and the opponent, WFM Motors Pty Ltd, in classical terms of agency. Nonetheless, he describes a relationship between those two entities which would have supported the claim made by WFM Motors against Mr Maydwell on the guarantee, which was the transaction sued upon in the proceedings before Master McLaughlin.