Crawley v Cochrane - [1999] NSWCA 287

CITATION: Crawley v Cochrane [1999] NSWCA 287

FILE NUMBER(S): CA CA 40876/98

HEARING DATE(S): 19 July 1999

JUDGMENT DATE:
19 July 1999

PARTIES :

Christopher William Crawley - claimant/appellant
Graham Cochrane (in his capacity as Strata Schemes Adjudicator) - 1st opponent/respondent
The Owners - Strata Plan No 222481 - 2nd opponent/respondent

JUDGMENT OF: Registrar Jupp

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : EQ 2608/98

LOWER COURT JUDICIAL OFFICER: Cohen J

COUNSEL: Mr Cohen - claimant/appellant
Mr Young - 2nd opponent/respondent
(submiting appearance filed for 1st opponent/respondent)

SOLICITORS: Aubrey F Crawley & Co - claimant/appellant
Crown Solicitors Office - 1st opponent/respondent (submitting appearance)
David Le Page - 2nd opponent/rspondent

CATCHWORDS: competency of appeal

ACTS CITED: Supreme Court Act

DECISION: motion for an extension of time to seek leave to appeal dismissed, appeal struck-out as incompetent, stay of orders for 28 days or if motion for review of orders is filed till that review is determined

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40876/98

REGISTRAR JUPP
Monday 19 July 1999

CHRISTOPHER WILLIAM CRAWLEY v GRAHAM COCHRANE
JUDGMENT

1   REGISTRAR: These proceedings were commenced by a holding summons for leave to appeal filed on 6 November 1998. The appeal is from a decision of Justice Cohen of 14 October 1998 dismissing a summons filed by the appellant seeking declarations that certain orders of the defendant, the first respondent, were invalid.
2   A notice of appeal with appointment was subsequently filed on 4 February 1999, the appellant's legal advisers apparently having formed the view that they have an appeal as of right.
3 On 29 April 1999 at the first directions call-over, I indicated to the parties that the appeal appeared incompetent pursuant to section 101(2)(r) of the Supreme Court Act (and possibly section 101 subsection 2(h) of the Supreme Court Act).
4   I directed that if the appellant asserted that they had an appeal as of right that they file a Part 51 Rule 8 affidavit by 13 May 1999 and I adjourned the matter to 17 June 1999.
5   On 17 June 1999 the matter was listed before Deputy Registrar Howe. There is no transcript of what occurred on that day. It appears that Deputy Registrar Howe agreed with my view as to the competency of the appeal, despite an affidavit of T Tsathas sworn 4 June 1999, and he directed that any application for an extension of time to file a summons for leave to appeal be filed by 9 July 1999.
6   Such a motion was filed and was returnable at the directions call-over last Thursday 15 July 1999, and was stood over till today.
7   At the adjourned directions call-over on 15 July 1999, Mr Cohen on behalf of the appellants, indicated to me that he wished to argue that the appeal was competent without leave and would be seeking to review any decision saying that the appeal was incompetent, rather than proceeding with an application for leave.
8   To that end…

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: [1999] NSWCA 287
Decision Date: 19 July 1999

CaseChat Overview and Summary

Registrar Jupp of the Supreme Court of Queensland considered a motion for an extension of time to seek leave to appeal, brought by the applicant, Mr. Crawley, against the respondent, Mr. Cochrane. The underlying dispute concerned orders made by the court.

The primary legal issue before the Registrar was whether the applicant had established sufficient grounds to warrant an extension of time to seek leave to appeal. This involved an assessment of the applicant's prospects of success on appeal and any prejudice that might arise from refusing the extension.

Registrar Jupp reasoned that the applicant had failed to demonstrate a strong likelihood of success on appeal, a key requirement for granting an extension of time. Consequently, the Registrar dismissed the motion for an extension of time. As a result, the appeal itself was struck out as incompetent. However, a stay of the original orders was granted for 28 days, or until the determination of any motion for review of the Registrar's orders, to allow the applicant further opportunity to pursue legal avenues.

Orders

Orders of the court

motion for an extension of time to seek leave to appeal dismissed, appeal struck-out as incompetent, stay of orders for 28 days or if motion for review of orders is filed till that review is determined

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.

CITATION:	Crawley v Cochrane [1999] NSWCA 287
FILE NUMBER(S):	CA CA 40876/98
HEARING DATE(S):	19 July 1999
JUDGMENT DATE:	19 July 1999
PARTIES :	Christopher William Crawley - claimant/appellant Graham Cochrane (in his capacity as Strata Schemes Adjudicator) - 1st opponent/respondent The Owners - Strata Plan No 222481 - 2nd opponent/respondent
JUDGMENT OF:	Registrar Jupp

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	EQ 2608/98
LOWER COURT JUDICIAL OFFICER:	Cohen J

COUNSEL:	Mr Cohen - claimant/appellant Mr Young - 2nd opponent/respondent (submiting appearance filed for 1st opponent/respondent)
SOLICITORS:	Aubrey F Crawley & Co - claimant/appellant Crown Solicitors Office - 1st opponent/respondent (submitting appearance) David Le Page - 2nd opponent/rspondent
CATCHWORDS:	competency of appeal
ACTS CITED:	Supreme Court Act
DECISION:	motion for an extension of time to seek leave to appeal dismissed, appeal struck-out as incompetent, stay of orders for 28 days or if motion for review of orders is filed till that review is determined