Sealby v Obelisk Securities Pty Ltd & Ors [1999] NSWCA 368

New South Wales Court of Appeal CITATION : Sealby v Obelisk Securities Pty Ltd & Ors [1999] NSWCA 368 revised - 20/10/99 FILE NUMBER(S) : CA 40893/97; 40890/97 HEARING DATE(S) : 8 September 1999 JUDGMENT DATE : 8 September 1999

Gregory John Sealby v PARTIES : Obelisk Securities Pty Ltd Roland Errol Gridiger Nicholas Cassim JUDGMENT OF : Mason P at 1

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : ED 2497/96 CLD 13915/96 LOWER COURT JUDICIAL OFFICER : Santow J

COUNSEL : A: In person R: A Colefax A: Nicholas Eddy & Company, Woollahra SOLICITORS : 1R: Gridiger & Co, Sydney (40893/97) 2R: Colin Biggers & Paisley, Sydney (40893/97) CATCHWORDS : Notices of appeal challenging orders - Respondents seeking dismissal of notices of appeal due to non-compliance by appellant with requirements of rules relating to the filing of appeal books - Application by appellant for adjournment due to lack of funds - No question of principle. ACTS CITED : Supreme Court Rules DECISION : Appeals dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40893/97 ED 2497/96 CA 40890/97 CLD 13915/96

MASON P Wednesday, 8 September 1999

Gregory John SEALBY v OBELISK SECURITIES PTY LTD & Ors

JUDGMENT

1 MASON P: On 27 September 1997 Santow J made final orders in relation to Equity proceedings (2497 of 1996). The plaintiff Gregory John Sealby was wholly unsuccessful in circumstances involving an adverse finding as to the plaintiff's credibility and veracity. The plaintiff failed at the threshold in failing to establish a retainer with the result that there was held to be no fiduciary relationship. 2 The action was one which his Honour held to have been commenced or continued in circumstances where "the applicant, properly advised, should have known he had no chance of success". The proceedings were held to be an abuse of process and an order for indemnity costs was made. 3 Orders were also made against the plaintiff on a cross-claim in the Equity proceedings. 4 There were related proceedings in the Common Law Division (13195 of 1996). The plaintiff was Obelisk Securities Pty Ltd and there were five defendants, including Mr Sealby. On 27 November 1997 Santow J entered judgment in the plaintiff's favour in the sum of $392,325.77 together with other orders. I have been informed today that that judgment has not been stayed but neither has it been paid. 5 The appellant, Mr Sealby, filed notices of appeal challenging the orders in each proceedings. A combined red book was served on 9 March 1998. On 16 April 1998 Registrar Jupp made orders that the appeals be consolidated and heard together. He also gave directions for the filing of a black appeal book reproducing the transcript of what was a lengthy trial and blue appeal books reproducing affidavits and exhibits. 6 Part 51 r37(2) required the appellant, not less than one month before the date fixed for hearing of the appeal, to file copies of the black and blue books and the consolidated index and to lodge three copies with the Registrar and to serve copies on interested parties. 7 Some time earlier this year the appeal was fixed for hearing on 15 September 1999. This listing was confirmed by letter from the Registrar which reminded the appellant of his obligations under the Rules. The appellant was represented by a solicitor until today. That solicitor, Mr Maloney, appeared earlier today and informed the Court that he had ceased to act. He filed a notice of ceasing to act in each appeal. 8 Despite further reminders by letter and telephone there has been non-compliance with the requirements of the Rules about filing appeal books. Nor have the appellant's submissions and chronology been filed in accordance with r47. 9 The second respondent in the appeal from the Equity Division and the first respondent in that appeal and the respondent in the appeal from the Common Law Division have filed notices of motion seeking the dismissal of the notice of appeal in each matter. 10 Mr Sealby appeared. He confirmed that he no longer had legal representation. He did not dispute the non-compliance with the Rules that I have recounted. He told me that the cause was lack of funds, being funds to prepare the appeal books and funds to retain the lawyers whom he would want to prosecute any appeal on his behalf. 11 Very late in the piece he indicated that he sought an adjournment of between two and three months. He said that he expected to have sufficient funds to continue the appeal. In a situation where the judgment remains unpaid and where lack of funds to date has been a reason or the reason for not getting the appeal in readiness for hearing, one must receive that statement with a significant level of scepticism. It would not be material upon which the Court could act were it not verified. 12 Mr Sealby indicated that he was prepared to put his oath to the statement and to provide, by way of oral evidence, information about his financial position, present and prospective. I do not understand him to say that he presently has the funds to prosecute the appeal. At its highest he is wanting to be able to say he expects to be put in those funds. The prospect of a lengthy and unnecessary oral hearing presented itself - unnecessary because in an application of this nature evidence should in the ordinary course be given by affidavit. I do not wish to pre-empt the outcome of that exercise, but the manner in which it was foreshadowed did not suggest any great cause for expecting that Mr Sealby will be able to make good his claim, at least in circumstances where that would lead to refusing the relief which has been sought. 13 I do not think it is proper to grant the adjournment in these circumstances, nor to permit Mr Sealby to embark upon a situation of giving oral evidence in circumstances where he obviously has not come prepared to do that, nor have counsel for the claimants come prepared to meet any such matter. 14 The Court has power to dismiss for want of prosecution. Here, despite the Rules, the reminders and legal advice, there has been gross delay. Unfortunately it has led to a situation where a hearing date has been set aside to the disadvantage of other litigants. On the material presently before me there is no real prospect that things are going to change. 15 What I propose to do, as foreshadowed in discussion with the parties, is to make an order in each appeal dismissing the appeal for want of prosecution and order the appellant to pay the costs of the respondents, including the costs of the claimants on the respective notices of motion. However, that order should be stayed for a period of one month on condition if within that time the appellant files an affidavit disclosing in detail his present financial position and the basis upon which he has a realistic prospect of being put in funds to enable the appeal to be revived and prosecuted, then I would entertain an application to rescind today's order. I give no indication as to whether that application would be successful; merely that it would be entertained in the event that an affidavit in the detail I have indicated is filed within one month. That will enable the appellant if he wishes to continue what, in his calmer moments, he may think is throwing good money after bad then he may do so. But he must do so on that basis. 16 For those reasons I make the orders indicated. * * * * * * * * * *