KARA KAR HOLDINGS PTY LTD v BROOKTON HOLDINGS PTY LTD

Court of Appeal (NSW)|1996-12-16|Before: Handley JA, Young J

KARA KAR HOLDINGS PTY LTD v BROOKTON HOLDINGS PTY LTD SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

Handley JA. In this matter Mr de Meyrick appears for the claimants on a notice of motion filed on 22 November 1996. The notice of motion sought a declaration that the notice of appeal filed on 27 September 1996 from the judgment of Young J on further consideration given on 4 September 1996 was competent as that was a final judgment. In the alternative if that was interlocutory judgment within s 101 (2)(e) of the Supreme Court Act, the claimants sought leave to appeal.

There is authority that the judgment of Young J on further consideration was interlocutory for the purpose of an appeal. See Derawee Pastoral Company Pty Limited v McConochie, 24 February 1995, unreported.

It became apparent during argument that the claimants might really need leave to appeal out of time from the original judgment of Young J of 6 May 1994 which had directed accounts and enquiries before the Master. Mrde Meyrick then applied for leave to amend the notice of motion to seek an extension of time within which to appeal from that judgment. In view of the conflicting recollections of counsel, there was an issue as to whether any point based on cl 10 (4) of the Superannuation Trust Deed had been raised by the claimants before Young J at the hearing on 13 April 1994.

In these circumstances it would obviously be imprudent for the claimants to seek to proceed today on an amended notice of motion without further evidence in support of the application for leave to appeal out of time. If leave to amend were granted, the matter could not proceed today because both the claimants and the opponents would need an adjournment.

In those circumstances Mr de Meyrick, on instructions, elected to apply for leave to amend the notice of motion accepting that the consequences would be an adjournment, and an order that the claimants pay the costs of today.

It is appropriate that all issues raised in the notice of motion be dealt with at the one time and by the one court. Accordingly leave to amend the notice of motion should be granted on terms that the matter is adjourned to Monday 17 February 1997 for hearing. The claimants are to file and serve any further affidavits to be relied upon in support of the amended notice of motion by 5.00 pm on Monday 3 February.

The opponents are to file and serve any affidavits in answer by 5 pm on Monday 10 February. Notices to attend for cross-examination, if any, are to be given no later than 5.00 pm Wednesday 12 February.

In view of the amendment and the proposed additional evidence the case is not to be treated as part heard before the Court presently constituted. I would therefore propose:

(1) That the claimants have leave to amend the notice of motion of 22 November 1996 by adding as Prayer 2A an order extending the time within which to appeal from the judgment of Young J of 6 May 1994.

(2) A direction that the claimants file and serve copies of the amended notice of motion by 4.00 pm on Monday 23 December and that affidavits be filed and served and any notices to attend for cross-examination be given as outlined in my reasons;

5 (3) An order that the claimants pay the costs of these proceedings today in any event.

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