[2019] NSWCA 212
El-Hanania v Vella (No 2)
(1) Order that the proceedings be dismissed. (2) Order that the applicant pay the respondent’s costs. (3) Direct that within 72 hours the respondent serve a sealed copy of these orders on the applicant and file an affidavit of service proving compliance with this direction. (4) Reserve leave to the applicant to set aside this order within seven (7) days after service of the said copy order. (5) Direct that orders (1) and (2) not take effect until the later of (a) 30 August 2019; or (b) if the applicant applies pursuant to the leave in order (4), determination of that application.
Catchwords
CIVIL PROCEDURE – dismissal of proceedings – where order granting extension of time to appeal conditional – where conditions not met – where applicant fails to show cause to proceed
Judgment
- [1]
On 10 July 2019, the Court (constituted by Gleeson, Payne, and McCallum JJA) delivered reasons [1] for orders which had been made on 3 July 2019 in the following form:
- [2]
The applicant was represented by counsel on 3 July 2019 when those orders were made.
- [3]
It will be observed that the orders of 3 July 2019 granted an extension of time for filing the summons instituting these proceedings to 1 April 2019, subject to conditions requiring payment into Court of some $212,000 and provision of security for costs in a form satisfactory to the Registrar in the sum of $35,000.
- [4]
The record discloses no compliance with either of those conditions. It is clear from the reasons of McCallum JA at [48] and [49] that the extension of time which permitted the proceedings validly to be instituted was intended to be conditional upon compliance with the conditions.
- [5]
When the orders of 3 July were made, the proceedings were adjourned to 5 August 2019 before the Registrar. The Registrar’s notes of the proceedings before him on 5 August indicate that Mr Wassef appeared by leave for the applicant. The Registrar made the following orders:
- [6]
No affidavit evidence has been filed by the applicant pursuant to that direction. There was no appearance for the applicant today when the matter was again before the Registrar, and there is no appearance for the applicant before me.
- [7]
As the reasons of 10 July 2019 indicate, the matter has a long and sorry procedural history and, as those reasons also indicate, prima facie, the respondent has been kept out of substantial money to which he is apparently entitled for a long period of time. The applicant is a solicitor and must be taken to have some appreciation of the processes and procedures of the Court, including the risk of dismissal of proceedings if there is no appearance, even though beyond the order made by the registrar on 5 August no formal notice to that effect has been given. Nonetheless, because of the drastic nature of the consequences, I propose to include in the orders that I will make a provision which will alleviate any potential risk of want of notice in that regard.
- [8]
In short, the position is that the proceedings were only able to have been instituted as a result of an indulgence of an extension of time; that indulgence was given on the two conditions to which I have referred; and those conditions have not been satisfied. In those circumstances, the proceedings must be taken not to have been regularly instituted. The applicant has not endeavoured to show cause why his summons should not be dismissed as incompetent.
- [9]
For those reasons, the orders of the Court are:
- (1)
Order that the proceedings be dismissed.
- (2)
Order that the applicant pay the respondent’s costs.
- (3)
Direct that within 72 hours the respondent serve a sealed copy of these orders on the applicant and file an affidavit of service proving compliance with this direction.
- (4)
Reserve leave to the applicant to set aside this order within seven (7) days after service of the said copy order.
- (5)
Direct that orders (1) and (2) not take effect until the later of
- (1)