Haemmerle v Proctor [2007] NSWCA 260

Haemmerle v Proctor [2007] NSWCA 260

The extension of time was refused because, after the appellant's earlier appellate steps were not prosecuted and the stay was revoked, the respondent was entitled to sell the property and use the proceeds to buy a home; granting an extension would expose him, an elderly and unwell pensioner with no significant other assets, to expense, worry and possible sale or encumbrance of his home. Against that prejudice, the proposed appeal had only remote prospects of success, as it challenged findings substantially based on credibility and the appellant did not identify any error capable of overturning the District Court's conclusion that a de facto relationship existed and that adjustment orders...

Jurisdiction
Australia
Judgment Date
17 September 2007
Procedural Posture
Notice of Motion for Extension of Time to File a Notice of Appeal With Appointment / Court of Appeal Application for Extension of Time
Outcome
Extension of time refused; notice of motion dismissed; notice of appeal with appointment dismissed; appellant ordered to pay the respondent's costs.
Legal Topics
['extension of Time to Appeal' 'adjustment of Property Interests' 'de Facto Relationship' 'prospects of Success on Appeal' 'prejudice to Respondent']
['appeals' 'civil Procedure' 'property Relationships'] ['extension of Time to Appeal' 'adjustment of Property Interests' 'de Facto Relationship' 'prospects of Success on Appeal' 'prejudice to Respondent']

Case Brief

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Procedural Posture

Notice of Motion for Extension of Time to File a Notice of Appeal With Appointment / Court of Appeal Application for Extension of Time

Legal Issues

  1. 1 ['Whether time should be extended for the appellant to file a notice of appeal with appointment from the District Court decision given on 9 November 2006.' 'Whether refusal of an extension would work an injustice on the appellant, having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties.' 'Whether the proposed appeal had sufficient prospects of success to justify exposing the respondent to the prejudice of an appeal after he had sold the property and used the proceeds to buy a home.']

Ratio Decidendi

The extension of time was refused because, after the appellant's earlier appellate steps were not prosecuted and the stay was revoked, the respondent was entitled to sell the property and use the proceeds to buy a home; granting an extension would expose him, an elderly and unwell pensioner with no significant other assets, to expense, worry and possible sale or encumbrance of his home. Against that prejudice, the proposed appeal had only remote prospects of success, as it challenged findings substantially based on credibility and the appellant did not identify any error capable of overturning the District Court's conclusion that a de facto relationship existed and that adjustment orders...

Court Disposition

Extension of time refused; notice of motion dismissed; notice of appeal with appointment dismissed; appellant ordered to pay the respondent's costs.

Orders

  • ['The notice of motion filed on 27 July 2007 is dismissed.' 'The notice of appeal with appointment which was filed is dismissed.' "The appellant is to pay the respondent's costs." 'The appellant is ordered to pay the costs of the proceedings.']