MacLENNAN v STOLLZNOW [1998] NSWCA 133

MacLENNAN v STOLLZNOW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, BEAZLEY and STEIN JJA 16 March 1998, 16 March 1998

[1998] NSWCA 133

Appeal and New Trial — Practice — Non-compliance with directions — Dismissed for want of prosecution — Prospects of success of appeal — Whether "wasted costs order" called for

Powell JA The Court has before it today two Notices of Motion, the first filed by the Appellant, who appears, today, in person and the other filed on behalf of the Respondent, for whom his solicitor, Mr Bilinskyj appears today.

In the first Notice of Motion, the Appellant seeks an Order that the hearing date for the appeal, which has been fixed for Thursday next, be vacated, while in the second Notice of Motion, the Respondent seeks an Order that the appeal be dismissed for want of prosecution.

The appeal arises out of an application made by the Appellant pursuant to the provisions of the De Facto Relationships Act 1984 ("the Act") in which application the Appellant sought the making of an Order for the payment to her by the Respondent of the sum of some $250,000, by way of adjustment of property interests pursuant to the provisions of s20 of the Act.

The proceedings were heard in May 1997 by Master Macready who, in June 1997, dismissed the Appellant's application and, on the Respondent's Cross-Claim, made Declarations as to the entitlement of the parties to certain interests held by companies which had been set up on behalf of one or other of them for the purpose of trading on the Sydney Futures Exchange.

The relationship between the parties was of comparatively short duration, being for about three and a half years. The Master's Judgment would tend to indicate that, during the time the parties lived together, they, with the assistance of one or more professional advisers, kept their financial affairs substantially different from each other and that, in particular, there had been set up the two companies, one for the Appellant and one for the Respondent, through which their trading on the Sydney Futures Exchange was conducted.