Cafe du Liban Pty Ltd v Bespoke Garage Pty Ltd - [2018] NSWCA 234

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cafe du Liban Pty Ltd v Bespoke Garage Pty Ltd [2018] NSWCA 234
Hearing dates: On the papers
Decision date: 18 October 2018
Before: Meagher JA; Emmett AJA
Decision:
1. Mr Ekes’ application for leave to file and serve a notice of ceasing to act is granted.
2. The application for extension of time in which to seek leave to appeal is refused.
3. The summons seeking leave to appeal is dismissed.
4. The applicants are to pay the respondent’s costs of the summons.

Catchwords: PRACTICE AND PROCEDURE – application for extension of time to apply for leave to appeal – period of unexplained delay by applicants – costs incurred by respondent seeking to enforce judgment – small amount in issue on proposed ground of appeal that is reasonably arguable – no issue of principle
Legislation Cited: Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 7.29, 51.10
Cases Cited: Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438
Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195
Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121
Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28
Plenty v Gladwin [1986] HCA 55; (1986) 60 ALJR 665
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category: Principal judgment
Parties: Cafe du Liban Pty Ltd (First Applicant)
Dorothy Krahe (Second Applicant)
Bespoke Garage Pty Ltd (Respondent)
Representation:
Ms Krahe (self-represented and for Second Applicant)
Solicitors:
AR Conolly & Co Lawyers (Respondent)

File Number(s): 2017/213271
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 1232

Date of Decision:

20 September 2017

Before:

Beech-Jones J

File Number(s):

2016/276065

Judgment

THE COURT: By a summons filed on 18 July 2018, the applicants (Liban and Ms Krahe) seek an extension of the time in which to apply for leave to appeal, and seek leave to appeal, from orders made by a judge of the Supreme Court (Beech-Jones J) on 20 September 2017: Cafe Du Liban Pty Ltd v Bespoke Garage Pty Ltd (No 2) [2017] NSWSC 1232. Those orders allowed in part their appeal from a judgment given by the Local Court in a proceeding in which the respondent (Bespoke) was plaintiff: Bespoke Garage Pty Ltd v Cafe Liban Pty Ltd t/as Du Liban and Dorothy Krahe (unreported, 19 August 2016, Freund LCM). Leave to appeal to this Court is required because the amount in issue is less than $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r)(i). The applicants’ notice of intention to appeal did not extend the time for filing a summon seeking such leave from 28 days to three months because it was not served after “the material date”, being the date the orders were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCA 234
Decision Date: 18 October 2018

CaseChat Overview and Summary

Cafe du Liban Pty Ltd and others (the applicants) sought an extension of time to apply for leave to appeal a decision of the Supreme Court of New South Wales. The respondent, Bespoke Garage Pty Ltd, had obtained a judgment against the applicants, and the applicants wished to appeal this judgment. The application for an extension of time was heard by Meagher JA and Emmett AJA of the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issue before the Court of Appeal was whether to grant the applicants an extension of time to seek leave to appeal. This involved considering the applicants' unexplained delay in bringing the application, the costs incurred by the respondent in enforcing the judgment, the arguable nature of the proposed grounds of appeal, and whether the appeal raised any significant issue of principle.

The Court of Appeal refused the application for an extension of time. Their Honours noted the significant and unexplained delay on the part of the applicants. While acknowledging that the proposed ground of appeal was reasonably arguable and involved a small amount in issue, the Court found that these factors were insufficient to outweigh the prejudice to the respondent caused by the delay and the lack of any compelling reason for the applicants' tardiness. The Court also granted an application by Mr Ekes for leave to file and serve a notice of ceasing to act. Consequently, the summons seeking leave to appeal was dismissed, and the applicants were ordered to pay the respondent's costs of the summons.

Orders

Orders of the court

1. Mr Ekes’ application for leave to file and serve a notice of ceasing to act is granted.

2. The application for extension of time in which to seek leave to appeal is refused.

3. The summons seeking leave to appeal is dismissed.

4. The applicants are to pay the respondent’s costs of the summons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cafe du Liban Pty Ltd v Bespoke Garage Pty Ltd [2018] NSWCA 234
Hearing dates:	On the papers
Decision date:	18 October 2018
Before:	Meagher JA; Emmett AJA
Decision:	1. Mr Ekes’ application for leave to file and serve a notice of ceasing to act is granted. 2. The application for extension of time in which to seek leave to appeal is refused. 3. The summons seeking leave to appeal is dismissed. 4. The applicants are to pay the respondent’s costs of the summons.
Catchwords:	PRACTICE AND PROCEDURE – application for extension of time to apply for leave to appeal – period of unexplained delay by applicants – costs incurred by respondent seeking to enforce judgment – small amount in issue on proposed ground of appeal that is reasonably arguable – no issue of principle
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 7.29, 51.10
Cases Cited:	Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195 Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28 Plenty v Gladwin [1986] HCA 55; (1986) 60 ALJR 665 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category:	Principal judgment
Parties:	Cafe du Liban Pty Ltd (First Applicant) Dorothy Krahe (Second Applicant) Bespoke Garage Pty Ltd (Respondent)
Representation:	Ms Krahe (self-represented and for Second Applicant) Solicitors: AR Conolly & Co Lawyers (Respondent)
File Number(s):	2017/213271
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2017] NSWSC 1232 Date of Decision: 20 September 2017 Before: Beech-Jones J File Number(s): 2016/276065