KAO v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) [1996] NSWCA 290

KAO v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 12 August 1996

[1996] NSWCA 290

Priestley JA. This is a notice of motion for an extension of time within which the claimant may institute an appeal from a judgment delivered by Mr Justice Rolfe on 1 December 1993.

The proceedings before Mr Justice Rolfe involved a number of parties against whom judgments were given at the same time as judgment was ordered against the present claimant. Two of those parties, Mr and Mrs Gilmour, lodged an appeal, the claimant did not. Before me today it has been both proved and conceded that the claimant's non-filing of the notice of appeal within the time limited by the rules was intentional and decided upon after advice from his then solicitors, a firm of solicitors properly described as competent.

The amount of the judgment against the claimant was of the order of four million dollars so I think it legitimate to infer that serious considerationwill have been given to the question of an appeal both by the claimant himself and his then legal advisers.

The appeal by Mr and Mrs Gilmour came on for hearing in May 1994 and judgment was delivered on 24 February 1995. Mr Justice Meagher delivered the main reasons of the Court. He was of the view that Mr and Mrs Gilmour were liable for the amount of the judgment entered against them on a particular basis. In the course of discussing this basis he mentioned another basis that had been argued and remarked that that basis was not available to Mr and Mrs Gilmour but could have been argued by the other parties to the proceedings before Mr Justice Rolfe had they appealed. A key word in his reasons in regard to that other basis was that it was at least arguable that it was available to the other parties to the proceedings before Mr Justice Rolfe.

I gave short reasons in that matter in which I agreed with Mr Justice Meagher that for the reason he gave, the appeal by Mr and Mrs Gilmour had to be dismissed. I refrained from making any comment about the alternative basis.

Mr Justice Clarke even more explicitly refrained from making any observation along the lines that Mr Justice Meagher had done about the alternative basis arguably open to the other parties before Mr Justice Rolfe.

The claimant's present solicitor received instructions from him first some time in July 1995 in connection with an application by the judgment creditor for leave to effect service of a bankruptcy notice upon the claimant by substituted service. On 22 February 1996 a creditors petition was initiatedagainst the claimant. On 25 June 1996 the present application for an extension of time to appeal against the judgment of 1 December 1993 was filed.

The basis on which that application is made is that what Mr Justice Meagher had said in the judgment delivered in February 1995 about the arguability of a ground of appeal available to the claimant was an expression of opinion soundly based at least to the extent that the point referred to by Mr Justice Meagher was worthy of being decided substantially upon an appeal. The application was

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further supported by reference to what was said by Mr Justice McHugh in Gallo v Dawson, a decision reported in volume 64 of the ALJR at p 458 and delivered in 1990 in which his Honour referred to the objective served by the power of a court to grant an extension of time for appeal. That power of extension of time he said was so that the rules did not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties.

For the purpose of disposing of this application I am prepared to accept that the point proposed by Mr Kelly is an arguable one. Nevertheless the delay in seeking to bring the appeal before the Court is so great, that to grant an extension would seem me to be more likely to work an injustice than to withhold the extension of time.

A passage in what Mr Justice McHugh said in Gallo v Dawson is as follows;""When the time for appealing has expired the litigation is at an end. The successful party is entitled to the benefit of the judgment in his or her favour. At that stage the successful party has a vested right to retain the judgment. It would make a mockery of order 70 rule 3 if months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved.'

Justice McHugh went on to say that in the matter before him he did not think the point that was sought to be made the subject of the appeal had any prospect of success. That made the case an even clearer one than the present case.

In the present case, looking at the matter from the point of view of the opponent, that opponent has been in the situation of having a vested right to retain its judgment from the period from 1 December 1993 to 25 June 1996. To interfere with that situation at this stage when the situation has been solely the product of the claimant's fully informed decision not to appeal, would seem to me to work an injustice against the opponent.

When a possible appellant refrains from appealing on advice in circumstances where other persons in the same litigation do appeal and thereafter maintains the position of not himself appealing, it seems to me that the longer that position obtains, the greater is the justification of the successful party in the proceedings for expecting that the litigation has closed and that it can order its affairs on the basis of the judgment obtained. In the present case I think the point was long ago reached where, for a court tointerfere with that justified expectation on the part of the opponent, would be to work an injustice against the opponent.

The matter must be one of balance. I have said that I have taken into account in reaching this conclusion that I would treat the point sought to be raised by the claimant as an arguable one. I have not gone further into the question of its arguability because it seems to me that the conduct of the claimant since judgment was entered against him has resulted in a situation where the Court, for practical purposes, must now treat him as precluded from trying to re-open the litigation. I would therefore dismiss the application with costs.

HIS HONOUR: What should happen about the other motions?

SACKAR: There is no need obviously to proceed with them. They can simply be dismissed or I can seek leave to discontinue.

HIS HONOUR: I earlier referred to them as ancillary to the main motion, were they motions taken out in the motion?

SACKAR: Yes, so they would be dealt with by your Honour's orders but we would seek the costs in respect of those.

URJ KAO v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) (Priestley JA) 3

KELLY: I'd resist any such application your Honour. The affidavits of the claimant made it perfectly plain that he formed a belief and that was with advice and yet all of these motions go to the entirely irrelevant task of trying to ferret out what the advice was which doesn't bear on the question at all. This was a completely unnecessary indulgence and those motions should be dismissed on terms that those claimants pay my client's costs for they turn out to be completely useless.

HIS HONOUR: I go along with you partly but not entirely Mr Kelly. What I would be proposing to do Mr Sackar would be to make no orders for costs in regard to the motions that haven't been dealt with and to give you the costs as I already have of the main motion.

Ancillary to the motion which I have just dismissed, the opponent filed motions aiming to get materials from the opponent which may, in sense of absolute thoroughness, have been desirable for the opponent to obtain in case a court took a more favourable attitude towards the application than I have done, but it doesn't seem to me that the thoroughness that was embodied in the ancillary motions should be paid for by the unsuccessful claimant. Neither do I think the unsuccessful claimant should get his costs of those motions. I will therefore dismiss those motions without any order as to costs.

Orders accordingly.