Tory v Megna [2012] NSWCA 41

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tory v Megna [2012] NSWCA 41 Hearing dates: 12 March 2012 Decision date: 12 March 2012 Before: Young JA Decision: (1) Order that the submitting appearance filed by Mr Tory on 8 July 2011 may be withdrawn and a contested appearance filed in lieu. (2) Order (1) subject to conditions 1 to 5 in Mr Molomby's document, varying condition 3 to make it 21 days and the amount $62,000. (3) Grant liberty to apply to the Registrar of the Court of Appeal as to what should happen if that security is not provided within the 21 days. (4) Order that the parties may have liberty to approach the Registrar with respect to fixing a date for the hearing of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE- applicant filed motion seeking leave to withdraw a submitting appearance- applicant originally filed submitting appearance when appellant, who was in the same interest, was represented- applicant filed motion to withdraw submitting appearance when appellant's solicitors ceased to act- granting leave to withdraw a submitting appearance is a discretionary decision of the court- generally, leave should be granted where an appearance was entered by mistake or accident but not when a deliberate choice was made- other considerations include whether the applicant has an arguable case, whether there is real prejudice and whether there has been any material change of case- although no exact precedent, in accordance with principle, it is appropriate to grant leave- leave granted. Legislation Cited: Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, r 6.11 Cases Cited: Evergreen Tours Pty Ltd v Mclaren [2010] NSWSC 1362 Garsec v His Majesty, The Sultan of Brunei [2007] NSWSC 882 Somportex Ltd v Philadelphia Chewing Gum Corporation [1986] 3 All ER 26 Category: Interlocutory applications Parties: David John Marshall (Appellant) Richard Martin Tory (Applicant/Third Respondent) Michael Megna (First Respondent) Russell James Lloyd (Second Respondent) Representation: Counsel: Appellant in person D Bricknell (Applicant/Third Respondent) T Molomby QC and R Rasmussen (First and Second Respondents) Solicitors: Appellant self represented Bricknell Legal (Applicant/Third Respondent) Etheringtons Solicitors (First and Second Respondents) File Number(s): CA 2004/181254