SAKHA & ANOR v SANDHURST TRUSTEES LIMITED [1999] NSWCA 258

New South Wales Court of Appeal CITATION : SAKHA & ANOR v SANDHURST TRUSTEES LIMITED [1999] NSWCA 258 FILE NUMBER(S) : CA 40296/99 HEARING DATE(S) : 12 July 1999 JUDGMENT DATE : 12 July 1999

PARTIES : H & J Sakha - Claimants Sandhurst Trustees Ltd - Opponents JUDGMENT OF : Sheller JA at 1; Cole AJA at 8

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 1732/97; 3896/97 LOWER COURT JUDICIAL OFFICER : Armitage DCJ

COUNSEL : K J Ryan - Claimants R Newlinds - Opponents SOLICITORS : Andresakis & Associates - Claimants Michell Sillar - Opponents CATCHWORDS : LEAVE TO APPEAL - late filing of notice of appeal with appointment - claim under $25,000 - leave to appeal not granted as no appealable error in trial Judge's judgment ACTS CITED : N/A CASES CITED: N/A DECISION : Application to extend time refused; Claimants ordered to pay opponent's costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40296/99 DC 40296/99 SHELLER JA COLE AJA

Monday, 12 July 1999

SAKHA & ANOR v SANDHURST TRUSTEES LIMITED JUDGMENT

1 SHELLER JA: The claimants, Hossein and Janet Sakha, have filed a summons seeking that the time be extended for the first and second claimants to apply for leave to appeal. The summons requests that if the time be extended leave to appeal be granted. 2 Mr Ryan, who appears for the claimants, applied for an adjournment in order to obtain a judgment given by the trial Judge which is not included in the white book. Apart from a submission that no prejudice was caused by an adjournment, there was no material which explained the absence of material from the white book. The Court refused the application for an adjournment. 3 On the application for an extension of time, the claimants rely upon an affidavit of Peter Skouteris sworn on 25 June 1999. The judgments from which leave to appeal is sought were delivered on 15 June 1998. Apparently shortly thereafter a holding appeal was lodged. However, the time expired for filing a notice of appeal with appointment. Thereafter some interchange took place between the claimants' solicitors and the Registrar, during which it became plain that leave to appeal was required. That interchange seems to have taken place late in 1998. Even so, the application for leave to appeal was not filed until late April 1999. 4 In my view there is no satisfactory explanation for this delay. However, having carefully read the judgment given by his Honour Judge Armitage DCJ on 4 June 1998, that being the judgment appealed from, I am not persuaded that such error is shown in it, as would entitle the claimants to leave to appeal. 5 The amount involved so far as the claim against the appellants was concerned is a figure under twenty-five thousand dollars. There seems to be little doubt that the claimants owed this amount by way of rent. The only question is whether an assignment was perfected which enabled the plaintiff to pursue a claim for non-payment of rent which would have otherwise been available to the former owner of the premises. 6 The cross-claim made by the claimants is for detinue. His Honour dealt with that by findings of fact which it seems to me could not be challenged on an appeal. 7 In all the circumstances I do not think that this is a case in which the Court would have granted leave to appeal. That being so, in my opinion the application to extend the time for filing such an application should be refused and the claimants ordered to pay the opponent's costs. 8 COLE AJA: I agree. 9 SHELLER JA: That will be the order of the Court. *****