Whitehouse Hotels Pty Ltd v Lido Savoy Pty Ltd

For the reasons we have given, if the Court in that case intended to hold that an appeal is instituted notwithstanding a failure to serve a notice within time, we would agree with that conclusion. However, it seems difficult to reconcile a decision that an appeal had been instituted with the view that it was proper to entertain an application to grant special leave, for if an appeal was on foot special leave to appeal would not have been required. Since the effect of the rules was not discussed in argument or in the reasons given for the decision, we cannot regard Vilenius v. Heinegar as a satisfactory authority and do not feel bound to follow it. In any case, as we have indicated, upon examination it does not appear to be an authority that supports the view that the present appeal is incompetent.

If an application had been made under O. 64, r. 2 we should have considered it appropriate in the circumstances already mentioned to relieve the appellant from the consequences of its non-compliance with O. 70, r. 6. However, no such application has been made, and since no application has been made to set the proceedings aside for irregularity it seems convenient to make no order and let O. 64, r. 1 have its effect. The result of that rule will be that the appeal is not avoided by the failure to effect service within time. The objection to competency will be overruled.