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. In the long run the Master found that the case which the Appellant sought to make out as to the contributions which she claimed to have made to the acquisition, improvement or retention of the Respondent's assets had not been made out, this finding being based (inter alia) upon the Master's assessment of the credibility of the Appellant and Respondent. In the event, as I have earlier noted, the Master dismissed the Appellant's claim. Thereafter a Notice of Appeal Without Appointment was filed on behalf of the Appellant, and later a Notice of Appeal With Appointment was filed on the Appellant's behalf in mid-October 1997. The appeal was listed before the Registrar in November at which time the Registrar settled the Appeal Index and gave directions as to the preparation and lodgement of the appeal papers. Nothing appears thereafter to have been done on behalf of the Appellant to ready the appeal for hearing. Certain it is that, when 2 UNREPORTED JUDGMENTS the matter was listed before me on 19 February last for the purpose of fixing a date for the hearing of the appeal, the appeal papers had not been prepared. On that day Mr K Newell of counsel who was instructed by the Appellant's then solicitors informed me that the appeal papers could be prepared and filed by 6 March last, a date which would have enabled the appeal to be heard in the list of appeals under the Act which is being conducted this week. Accordingly I ordered that the appeal books be filed by no later than that day but reserved to the Respondent leave to move to dismiss the appeal for want of prosecution in the event of non-compliance with that Order. No appeal books having been filed, there was then filed on behalf of the Respondent the Notice of Motion to which I have earlier referred. Meantime, however, the Appellant's then solicitors, having been unable to make appropriate arrangements for finance to enable them to have the appeal books prepared, served on the Appellant Notice of (their) Intention to Cease to Act. It was the giving of that Notice which led to the Appellant filing her Notice of Motion to which I have earlier referred. The matter came before me on Wednesday last in pursuance of the Notice of Motion which had been filed on behalf of the respondent. On that occasion Mr Rowe of counsel appeared, pro bono, for the Appellant. As such little information as Mr Rowe was able to give me suggested, first, that it might still be possible for the appeal to be made ready for hearing this week, or that, at the least, the Appellant might be able to provide to the Court material which would persuade it the appeal was worth prosecuting, I ordered that the matter stand adjoumed until today. We have now had an opportunity to read, and consider, in some detail, the judgment delivered by the Master on 17 June last. Having done so, I have concluded that, in the light of the Master's findings, there is no real prospect of the appeal succeeding if it were pemlitted to proceed to a final hearing and for that reason I would propose that the appeal be dismissed for want of prosecution. Before indicating my view as to the appropriate Order for costs, I should indicate that, when the matter was before me last week, it appeared to me that it may be that this was a case in which the Court would be inclined to make what I might call "a wasted costs order" (Supreme Court Act 1970 s76C) and, for that reason, I requested that the Appellant's former solicitors be infommed of that possibility and invited to appear. As a result of that invitation, Mr Gourlie, a member of the Appellant's fommer solicitor's firm has appeared today and has made available to the Court an Affidavit setting out the correspondence between his firm and the Appellant vary upon this matter. In the light of that correspondence I do not think it would be appropriate to make "a wasted costs order" directed to the members of the Appellant's fommer solicitor's firm. That being so, I would propose that the costs of both the Appellant's Notice of Motion, which should be dismissed, and of the Respondent's Notice of Motion, should be borne by the Appellant. Beazley JA Yes, I agree. Stein JA I agree. Powell JA Those are the Orders of the Court. Appellant's Notice of Motion dismissed. Costs of both the Appellant's Notice of Motion and the Respondent's Notice of Motion to be borne by the Appellant. URJ MacLENNAN v STOLLZNOW (Powell JA) The appellant appeared in person Counsel for the appellant's former solicitors: K C Gourlie (Solicitor) Solicitors for the appellant's former solicitors: Crichton-Brown Crossley Counsel for the respondent: C Bilinsky (Solicitor) Solicitor for the respondent: Horowitz & Bilinsky