Panagopoulos & anor v Gryllis & anor [1999] NSWCA 25

New South Wales Court of Appeal CITATION : Panagopoulos & anor v Gryllis & anor [1999] NSWCA 25 FILE NUMBER(S) : CA 40958/98 HEARING DATE(S) : 08/02/99 JUDGMENT DATE : 8 February 1999

PARTIES : Jim Panagopoulos and Mary Panagopoulos (claimants) Chris Gryllis and Maroula Gryllis (opponents) JUDGMENT OF : Registrar Jupp

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 7226/96 LOWER COURT JUDICIAL OFFICER : Balla ADCJ

COUNSEL : Mr Fitzgerald (for claimants) Mr G Thomas (for opponents) SOLICITORS : Andresakis & Associates (for claimants) T S Menounos & Associates (for opponents) CATCHWORDS : Extension of Time to file Holding Summons for Leave to Appeal DECISION : Extension of time to file holding summons granted to effect of validating the document already filed; claimant to pay opponents' costs

1

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40958/98

REGISTRAR JUPP

Monday 8 February 1999 JIM PANAGOPOULOS & ANOR V. CHRIS GRYLLIS & ANOR

JUDGMENT

1. REGISTRAR: In this matter the claimant has filed a notice of motion seeking an extension of time to file a holding summons for leave to appeal. The judgment that the claimant wishes to appeal from is a judgment of Balla ADCJ of 30 October 1998. The holding summons for the appeal was in fact filed on 30 November 1998, that day being a Monday when the last day to file a holding summons for leave to appeal as of right was the preceding Friday, 27 November 1998. 2. The Judgment of Balla ADCJ concerned the plaintiff's claim for damages relating to the purchase of a sandwich take-away business at St Peters. The amount in issue was less than $100,000, so if there is going to be an appeal in the Court of Appeal, leave is required. 3. In support of the notice of motion I have read three affidavits, two affidavits by the claimants' solicitor and one by Mary Panagopoulos. 4. It is apparent from the affidavit evidence that the reason for the delay lies with the claimants themselves rather than any extensive time delay by their solicitors. 5. The court has in prior cases arrived at the general principle that an extension of time should be granted in those circumstances where the delay is small, as is the case in this particular instance, and the appeal point is not hopeless. Although the grounds of appeal have not yet been drawn at this stage, in a matter where the application is for extension of time to file a holding summons rather than an ordinary summons or an appeal, some leeway has to be granted to the claimant as to the extent they need to draw the actual grounds of appeal. 6. Point 5 of written submissions provided by counsel for the claimants sets out what the principal ground of appeal will be, ie, that certain evidence which the claimants sought to rely upon was rejected in error by the trial Judge. 7. Mr Thomas, who has appeared on behalf of the opponents, has objected to me considering that proposed ground of appeal on the basis that the relevant evidence which was rejected has not been provided to me to consider this morning. Mr Thomas is probably correct to the extent that that evidence should have been available for me to consider. Nevertheless, I am persuaded that this is a bona fide appeal point, although I am not in a position to determine whether it is a strong appeal point. 8. The appropriate place to argue the merits of the appeal would appear to me to be after the application for leave to appeal (ie the ordinary summons for leave) is lodged. If the claimants don't file an ordinary summons for leave to appeal by the end of this month the proceedings will be deemed discontinue in any event and the opponents will be entitled to any costs that they have incurred up till that time. If the ordinary summons is filed all the relevant material will have to be provided to the Judges that will be determining that application and if there is any merit in the proposed appeal, leave will be granted. If not, leave will be refused with costs. 9. The only orders I make at this stage are that the time to file the holding summons for leave to appeal be extended, to the effect of validating the holding summons that was filed on 30 November 1998. I order that the claimant pay the opponent's costs of the motion.