BURRELL v CAMERON [1998] NSWCA 47

BURRELL vy CAMERON

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

STEIN JA 2 March 1998

[1998] NSWCA 47

Stein JA. This is a motion brought by the claimants, Robert Leslie Burrell and Joan Margaret Burrell seeking an order that time to appeal from the decision of Windeyer J given in the Equity Division on 4 April 1997 be extended. There was a holding appeal which lapsed and the matter is complicated by a second set of proceedings between the same parties heard by Bryson J later in 1997 and he gave Judgment, I think, in early December of that year.

It has been indicated on behalf of the claimants that an appeal will shortly be instituted against the decision of Bryson J.

The proceedings between the same parties before Mr Justice Windeyer, which is the subject of this motion, and the hearing before Bryson J, are related in that the evidence in the former case was annexed to affidavits in the latter case and then amplified by further evidence. The proceedings relate to options over a property known as "Pretoria" and the questions involved were whether or not the "Burrell" option, if I can use that expression, was on foot at a particular point in time or became terminated by another option known as the "Lennox" option. The second set of proceedings dealt with the Lennox option. The first set of proceedings before Windeyer J dealt with the Burrell option.

What I am about to say concerning the proceedings is brief in the extreme but I have had occasion to look at some of the documents and I have been referred to extensive affidavits filed on this motion.

justice in the proceedings before Windeyer J because of the non production of the file note. This is based upon Commonwealth Bank v Quade (1991) 178 CLR 134. No other grounds in the draft notice of appeal, other than the three which embrace this point, are proposed.