VELLUE PTY LTD and ANOR v AMERICAN FOODS PTY LTD and ANOR [1996] NSWCA 545

VELLUE PTY LTD v AMERICAN FOODS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA and SANTOW AJA 14 October 1996, 14 October 1996 [1996] NSWCA 545

PRACTICE and PROCEDURE — refusal of application for extension of time in which to file notice of appeal — no real explanation for delay — plaintiff aware of entry of judgment.

Clarke JA There is an application before the Court for an extension in time in which to file a notice of appeal challenging a judgment entered by Waddell J on 22 May 1989. The amount of that judgment is $12,926.37. In broad terms the applicant relies upon the unfortunate circumstances in which the judgment was entered, the failure of the judgment creditor to seek to enforce the judgment during the seven years and criminal proceedings and his illness in the intervening period.

As to the first it would appear that his solicitor went to the Equity Court on the day the matter was listed for hearing and indicated that proceedings which had been instituted by the applicant were not to be pressed. The applicant consented to those being dismissed. The solicitor had, however, overlooked a cross-claim brought by the company sued by the applicant and the legal representatives for that company sought to proceed with the cross-claim.

There appears to have been no good reasons why the cross-claim would not proceed and his Honour in due course directed that it should. He heard evidence and entered the judgment which I earlier mentioned. That occurred, I reiterate, in May 1989. Following the entry of that judgment the applicant filed a notice of motion in the Equity Division seeking a stay of the judgment conditional upon payment of money being made by the applicant. That motion was supported by a lengthy affidavit sworn by the applicant on 23 June 1989.

For reasons which have not been explained, no party appeared before the Court on the return day, that is 24 August 1989, and according to the Court Clerk's record of proceedings, the usual order was made and the parties were ordered to file affidavits explaining non-attendance and to write a letter to the list clerk requesting that the matter be relisted. There, so far as the evidence goes, the matter rested until recent proceedings in the Local Court. They provoked the applicant into making the present application. The judgment entered by Justice Waddell related to an amount of money drawn by the applicant from the company's bank account and his Honour held, and there is no challenge to this holding, that the cheque by which those monies were drawn had been written and signed by the applicant and was unauthorised.

What the applicant now says is that those monies were in fact due to him by way of salary and expenses, or perhaps by way of commission and expenses, and that it was wrong for judgment to be entered against him when he was in fact owed the money which he had taken. That is all very interesting but this case was not presented before Justice Waddell and judgment was entered.

2 UNREPORTED JUDGMENTS

In the circumstance that the judgment is for a small amount, that it has now stood for nearly seven and a half years, that the applicant was aware of the entry of judgment within a few weeks of that entry at the latest, that the applicant filed a motion which accepted the validity and regularity of the judgment and which sought an indulgence as to the manner in which the judgment would be paid, that there is no proper explanation for the whole of the delay over seven and a half years and, finally, that the appeal is a misconceived proceeding, it seems to me that the Court has no option but to dismiss the application with costs.

Santow AJA I concur. The only matter I would add concerns the prospects of an appeal on the substantive issue succeeding. If it were dependent upon the evidence presently before us and in particular the affidavit of Mr Beeson of 5 July 1996 para(ii) on 9, such appeal would likely fail. The amount subject to a judgment of Waddell J of $12,926.37 does not tally either with the amounts stated in para(23) of Mr Beeson's affidavit of 29 March 1988, which was more contemporary with the events in question or indeed with the group certificates attached.

Nor is there any evidence proving the negative, namely that the payments claimed to have been "received" under the consultancy agreement were not received in any other way than by the payment of the unauthorised cheque.

Finally there is certainly no convincing evidence in relation to any tax that might have been paid since the group certificates show no tax paid.

Furthermore, there is no evidence before us to suggest that as a consulting fee the taxpayer, being the applicant, returned that amount in his own personal tax return. This supports the other grounds for rejecting the present application.

Clarke JA: The order of the Court will therefore be that the application is dismissed with costs. The effect of that is there is no appeal on foot.

Application dismissed with costs. No appeal on foot. Counsel for the claimant: M Boyd

Solicitors for the claimant: Duffield and Duffield Counsel for the opponent: G Raffell

Solicitors for the opponent: B Berman and Co, Chatswood