Fine Real Estate Pty Limited v Maguire [1999] NSWCA 77

New South Wales Court of Appeal CITATION : Fine Real Estate Pty Limited v Maguire [1999] NSWCA 77 FILE NUMBER(S) : CA 40632/98 HEARING DATE(S) : 29 March 1999 JUDGMENT DATE : 29 March 1999

PARTIES : Fine Real Estate Pty Limited (claimant) R G Maguire (opponent) JUDGMENT OF : Registrar Jupp

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 885/92 LOWER COURT JUDICIAL OFFICER : Holt DCJ

COUNSEL : Falk - claimant Colefax - opponent SOLICITORS : Gregory Falk & Associates - claimant Colin Biggers & Paisley - opponent CATCHWORDS : extension of time DECISION : Time to appeal extended to 1 April 1999;; Claimant to pay opponent'c costs of motion

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

No 40632/98

REGISTRAR JUPP

MONDAY 29 MARCH 1999 FINE REAL ESTATE NETWORK V R G MAGUIRE.

JUDGMENT: (on application for extension of time to file notice of appeal with appointment)

1. REGISTRAR: In this matter a Notice of Appeal without Appointment was filed on 21 August 1998. That appeal was in respect of a judgment of Holt DCJ of 24 July 1998 in which he found for the defendant.

2. It has become apparent during the course of the proceedings seeking extension of time that that Notice of Appeal Without Appointment was not served on the respondent. An affidavit sworn by Mervyn Keith Fine on 15 March 1999 concedes that as far as Mr Fine was concerned the Notice of Appeal Without Appointment was not served. The affidavit unfortunately does not disclose why Mr Fine assumed that service would be effected by someone other than himself.

3. The effect of the non service of that notice of appeal without appointment is that the claimant is effectively asking for an extension of time to appeal for a period of some 3 months. The respondents only became aware of the appeal when the notice of motion seeking extension of time was filed in November last year. (26 November 1998)