Atkinson v Zey

In *Atkinson v Zey*, the applicant sought leave to appeal a decision of the District Court of New South Wales. However, a notice of discontinuance was filed before the hearing of the application for leave to appeal. The primary dispute concerned the applicant's liability for costs incurred up to the date of discontinuance, particularly in light of an earlier offer of compromise made by the respondent.

The court was required to determine several legal issues. These included whether leave to appeal was still necessary given the notice of discontinuance, the proper assessment of costs in light of the offer of compromise (specifically, whether interest to the date of the offer should be included and whether costs should be excluded from the offer), and the application of the relevant rules regarding costs consequences of non-acceptance of an offer of compromise, considering the replacement of the District Court Rules by the Uniform Civil Procedure Rules. The court also had to consider the effect of a summons filed out of time, the repeal of the power to extend time for such filings, and the application of the dispensing powers under the *Civil Procedure Act 2005* (NSW).

The court reasoned that once a notice of discontinuance was filed, the application for leave to appeal was no longer extant, and therefore no leave was required. Regarding costs, the court noted that the offer of compromise was made under the old District Court Rules, and the costs consequences should be determined by those rules. The court found that the offer of compromise, which included interest to the date of the offer, was a valid offer. The court also considered the transitional provisions of the *Civil Procedure Act 2005* and the *Interpretation Act 1987* (NSW) in relation to the out-of-time summons, ultimately exercising its dispensing power.

In relation to the applicant's application (matter no. CA 40324/07), the court ordered an extension of time for the service of the holding summons filed on 25 May 2007 to the date of receipt by the respondent's legal representative.