PRESTIA v AKNAR

Court of Appeal (NSW)|1995-07-24|Before: Cole JA

SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

Cole JA. This is a summons for an order pursuant to Part 51 rule 4 seeking an extension of time in which the claimant may lodge an appeal from the judgment of Holt DCJ given on 19 April 1995.

These proceedings originally commenced in the Supreme Court. The claim for relief before this Court was a defendant, and the two opponents, Atila Aknar and Andre Soussa, were the plaintiffs in those proceedings. They sought damages for breach of the provisions of similar deeds which had been entered into between Mr Aknar and Mr Soussa with a company, the obligations of which were guaranteed by the claimant Mr Joseph Anthony Prestia. Judgment on liability was given by the Supreme Court on 6 July 1992 and the matter was remitted to the District Court for assessment of damages. The damages action did not come on for hearing until 19 April 1995.

Shortly prior to that time, namely, on 27 March 1995 the solicitors acting for Mr Prestia filed a notice of ceasing to act. As appears from a judgment of Patten DCJ dated 20 June 1995, to which I will later refer, his Honour accepted that the non-appearance of Mr Prestia at the hearing assessing damages before Holt DCJ was due to Mr Prestia's beliefthat the matter had been settled, there having been some discussion about that between the parties in March/April 1995. It is in those circumstances that the matter proceeded ex parte before Holt DCJ.

His Honour entered a judgment in favour of each of Mr Aknar and Mr Soussa against Mr Prestia in the sum of $170,868. That sum in each instance was made up of a principal sum of $95,000 payable under the deed, interest of $58,368 and the sum of $17,500 said to be for loss of use of a motor vehicle. After judgment was given Mr Prestia sought to challenge it. He apparently took legal advice and that advice presumably was to move the District Court to set aside the judgment. A notice of motion to achieve that effect was issued on 11 May 1995. On 17 May the time by which an appeal as of right to this Court could have been brought expired. On 20 June 1995 Patten DCJ heard the notice of motion which he dismissed. On 30 June, after obtaining further advice from senior counsel, the summons before me was brought.

A draft notice of appeal raises in essence two matters of substance. The first is that the figure for interest of $58,386 is incorrect. It appears from an affidavit of Stephen Moss Exhibit C that a compound interest calculation produces a figure of $59,102, not greatly dissimilar from the figure of $58,386 awarded by the trial judge. The amount of interest payable in respect of a calculation on the basis of simple interest is $49,074. It is said there is thus on the face of it an error in relation to interest of $9,294.

The second matter raised is the claim in respect of the motor vehicle. His Honour awarded $17,500. It is sufficient if I say in my view it is arguable that the figure awarded by his Honour may not have been correct. The conclusion is that the prospective appellant wishes to put in issue $26,794 out of the award against

him in favour of each of Mr Aknar and Mr Soussa of $170,868. That means that there is an unchallenged portion of the judgment of $144,074.

It is true, as was put by counsel for the opponent, that the prospective appellant was unwise not to appear and took the risk that by so doing judgment may be entered against him. Nonetheless in circumstances where it appears to me that it is strongly arguable that there is error in the two respects to which I have mentioned, I am of the view having regard to the circumstances that Mr Prestia sought by procedures found to be incorrect to challenge the judgment within time that I should extend time to lodge a notice of appeal. However, it seems to me that that should be upon conditions, the conditions being that within fourteen days Mr Prestia pay to each of the first and second opponents the undisputed sum due to them of $144,074 each.

Accordingly the orders which I make are as follows:

I order pursuant to Part 51 rule 4 subrule | that the time within which the claimant may lodge a notice of appeal from the judgment of Holt DCJ delivered on 19 April 1995 be extended up to and including 7 August 1995 upon condition that prior to that date he pay to each of the first and second opponents the sum of $144,074.

I stay execution on the balance of the judgment sum of $26,794 conditional upon the sum of $144,074 being paid to each of the first and second opponents by 7 August 1995.

lorder the claimant to pay each of the opponents" costs in the motion.

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cited By (1)