HOGAN v BASEDEN

Court of Appeal (NSW)|1997-08-11|Before: Cowdroy J

SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

Registrar Jupp. In this matter a notice of appeal with appointment was filed on 1 July 1997 from a decision of Acting Justice Cowdroy of 18 December 1996. That notice of appeal was filed without leave or consent and in the ordinary course the Court of Appeal would not proceed to deal with the appeal unless an extension of time to appeal was granted and the appeal was validated.

A notice of motion was originally filed seeking an extension of time to appeal on | July 1997 and an amended notice of motion has been filed in court today. The amended notice of motion also seeks expedition of the appeal.

The proceedings before Acting Justice Cowdroy were heard in November 1996 and judgment was delivered on 27 November 1996. On that day certain orders and declarations were made and those orders were varied on 18 December 1996.

The parties are residents of a property at 42 Samuel Street, Ryde. The proceedings in the Equity Division sought orders for the sale of that property and division of the proceeds of sale to be divided 50/50 between the plaintiff and the defendant. The outcome of the proceedings before Acting Justice Cowdroy is set out in the orders as varied on 18 December 1996. The Court declared that the plaintiffs are entitled to a one half interest in the relevant property and that it be held as tenants in common with the defendant as to a one half share.

The Court ordered that the necessary steps be taken to ensure that the plaintiffs became registered proprietors.

The order that seems to have caused the difficulty and is the cause of the application seeking the extension of time is order (4) which is:

That the premises known as number 42 Samuel Street, Ryde, should not be sold without the express written consent of the defendant or of the defendant's legal guardian other than either of the plaintiffs.

The Court also granted liberty to apply in respect of any further orders that may be required.

The proceedings were initially listed before me on 14 July 1997 when the matter was adjourned to today. On that occasion I asked the appellants" legal representative why it would not have been better, if in fact all that was being appealed from was one order which was causing some difficulty, that an application was not made in the Equity Division pursuant to the 'liberty to apply'. I have been persuaded by Mr Taylor that it is arguable that the liberty to apply that was granted does not extend so far as to allow the Court to revoke an order it previously made. I also queried on the prior occasion why an application could not be made pursuant to section 66G of the Trustee Act. I have also been persuaded today that it is arguable that Acting Justice Cowdroy's orders estop the appellants from seeking to have those orders varied by a section 66G application.

Under those circumstances it appears to me that perhaps an appeal to the Court of Appeal is the only remedy that the appellants have. That, nevertheless, does not explain why an appeal was not filed or an application seeking an extension of time to appeal was not made quite some time ago. In the ordinary course the time to appeal would have expired towards the end of January this year. The appellants have argued that the reason for the delay in bringing the application was the possibility that the dispute between the parties could be resolved amicably in the meantime. I take it what the appellants were hoping was that the opponent would change her mind and agree to the premises being sold. As it has happened the respondent has not changed her mind and has reiterated that she intends to live in the premises until she dies.

The notice of appeal sets out one ground of appeal with five subparagraphs:

That the trial Judge erred in the exercise of his discretion in not ordering a sale of the premises and in ordering that there be no sale of the premises without the written consent of the defendant in that:

(1) he failed to take into consideration that a co-owner is entitled to an order for sale as of right except in very special circumstances;

(2) he failed to take into consideration that the parties had approached the Court because they could not live together and the effect of his order was to force the parties to live together;

(3) he failed to take into consideration that the premises were incapable of being partitioned so as to enable the parties to live separately and

(4) the circumstances were such that it was unreasonable or plainly unjust to so order.

Mr Meek, who has appeared today for the opponent, has argued that the appeal is not arguable and cannot be made out. He has referred me to the case of Williams v Legg 29 NSWLR at 687, which raises similar issues but which is on its face distinguishable. The criteria for granting an extension of time is that the appeal is not hopeless. I have formed the view that this appeal is not hopeless and is indeed an arguable appeal.

Mr Meek has also raised the prejudice to the opponent and in this respect he has noted that the opponent is 71 years old, an aged pensioner, has resided at the property for more than 42 years and suffers from asthma and emphysema.

Merely because the opponent is old and is ill does not appear to me to be a prejudice sufficient to deny the right of the appellants to bring an application which is arguably the only application they can make to resolve the dispute between the parties. I am persuaded in this respect that there is a serious dispute between the parties which I am unable to see a solution for. This is part of the reason why I am granting the application. If I was to refuse this application and if there is no alternative course of action available to the appellants then the parties would be forced to live together until the opponent died. In my opinion that is not a circumstance which is satisfactory for either of the parties. I suppose the only solution so far as the appellants are concerned is that they are successful on the appeal and the property is ultimately sold.

For the above reasons, but with some reluctance, I will grant the extension of time that the claimant has sought today, to the effect that the notice of appeal filed on 1 July 1997 be regarded as validly filed.

I will direct that the appellants approach the Registry of the Court of Appeal to obtain an appointment to settle the appeal index.

I will order that the cost of the application be costs in the appeal.

I will further order that the appeal be expedited and that in this respect the appointment to settle the appeal index be allocated within the next two weeks with the intent that provided the index is settled the matter will be placed in the next callover to be listed in October or November of this year.

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Cited By (2)