Boensch v Transport for NSW (No 2)

In *Boensch v Transport for NSW (No 2)*, the applicant, Boensch, sought to vary or set aside orders made by the Court of Appeal concerning the costs of both the appeal and the underlying proceedings. The respondent was Transport for NSW. The application was brought by way of a notice of motion filed on 14 June 2024.

The central legal issue before the Court of Appeal was whether it possessed the power to dispense with the requirement to file and serve a notice of motion within the prescribed timeframe, specifically 14 days of judgment being entered, when the Court and parties had been otherwise notified of the intended application. The applicant contended that the Court should exercise such a power to permit the late filing of the notice of motion.

The Court of Appeal determined that there was no basis to vary the costs order. The Court noted that the rules governing the filing of notices of motion for the variation or setting aside of judgments or orders were clear. While the applicant had given notice to the Court and the respondent of their intention to apply, this did not equate to the formal filing and service of a notice of motion within the stipulated period. The Court found no grounds to exercise any discretion to dispense with the procedural requirements.

Consequently, the Court of Appeal dismissed the notice of motion filed on 14 June 2024 and made no order as to the costs of the motion.