Devefi Pty Limited v Mateffy Perl Nagy Pty Limited

CATCHWORDS

PRACTICE AND PROCEDURE - Application for an extension of time to

file and serve a notice of appeal.

Federal Court Rules: Order 52, rule 15(2).

DEVEFI PTY LIMITED v MATEFFY PERL NAGY PTY LIMITED

LOCKHART, WILCOX and BURCHETT JJ.
14 SEPTEMBER 1992

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 419 of 1992
GENERAL DIVISION

BETWEEN: DEVEFI PTY LIMITED
Applicant

AND : MATEFFY PERL NAGY PTY LIMITED
Respondent

JUDGES MAKING ORDER: LOCKHART, WILCOX and BURCHETT JJ.
DATE ORDER MADE: 14 SEPTEMBER 1992
WHERE ORDER MADE : SYDNEY

MINUTE OF ORDER

THE COURT ORDERS THAT:

The time within which a notice of appeal from the judgment of Beaumont J. of 29 May 1992 shall be filed and served, be extended to 21 September 1992.

2. There shall be no order as to the costs of this

application.

NOTE : Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 419 of 1992

1

GENERAL DIVISION 1

BETWEEN: DEVEFI PTY LIMITED
Applicant

AND : MATEFFY PERL NAGY PTY LIMITED
Respondent

Court: Lockhart, Wilcox and Burchett JJ.

14 September 1992

REASONS FOR JUDGMENT

THE COURT

This is an application for an extension of the time within which to file and serve a notice of appeal. The application was opposed by the party that was successful before the learned primary Judge (Beaumont J.).

The notice of appeal was not filed within the prescribed

period of 21 days from the giving of judgment. The last day for

23 June, the solicitor for the applicant to the leave filing and serving the notice of appeal was 19 June 1992. Until

application, Mateffy Per1 Nagy Pty Limited, mistakenly thought that the period for filing and serving a notice of appeal from a judgment of a single Judge of this Court was 28 days and he appears to have been encouraged in that belief by the advice of senior counsel.

The solicitor, when he realised his mistake, immediately wrote a letter to the solicitors for the respondent to this application asking for consent to the appeal being filed out of time. The consent was not forthcoming, so a couple of days later the application for leave to file the notice of appeal out of time was filed and served.

The application for leave is opposed on the ground that there is no arguable case in support of the appeal. The Court is not persuaded of the correctness of that argument. The case is substantially similar to Jess v Scott (1986) 12 FCR 187.

The Court is of the view that special reasons have been established to justify the making of the orders sought. The expression "special reasons" of course, is taken from Order 52 rule 15(2).

The Court orders that:
1. The time within which a notice of appeal from the judgment of Beaumont J. of 29 May 1992, shall be filed and served be

extended to 21 September 1992.
2. There shall be no order as to the costs of this application.
I certify that this and the preceding one (1) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.
Associate
Dated: 14 September 199

Counsel for the Applicants : J.B. Simpkins

Solicitors for the Applicants : Swaab & Associates

Counsel for the Respondent . S.M.P. Reeves

Solicitors for the Respondent : Lakos & Company

Date of Hearing . 14 September 1992
Date of Judgment . 14 September 1992

CaseChat Overview and Summary

In the case of Devefi Pty Limited v Mateffy Perl Nagy Pty Limited, the applicant sought an extension of time to file and serve a notice of appeal against a judgment of Beaumont J. delivered on May 29, 1992. The application was opposed by the successful party in the original proceedings, Mateffy Perl Nagy Pty Limited. The applicant's notice of appeal was not filed within the prescribed 21 days from the date of judgment, with the last day for filing being June 19, 1992. The applicant's solicitor realised the error in the time period for filing an appeal and promptly sought consent from the respondent's solicitors to file the notice of appeal out of time, which was refused. Consequently, the application for leave to file the notice of appeal out of time was filed.

The legal issue before the Court was whether special reasons existed to justify extending the time for filing the notice of appeal, as per Order 52 rule 15(2) of the Federal Court Rules. The respondent argued that there was no arguable case in support of the appeal, a contention the Court did not find persuasive. The Court found the case to be substantially similar to Jess v Scott (1986) 12 FCR 187, where it was held that special reasons could warrant an extension of time. The Court concluded that the applicant's mistake in the time period and the immediate steps taken to rectify the error constituted special reasons justifying the extension. The Court ordered that the time for filing and serving the notice of appeal be extended to September 21, 1992, and made no order as to the costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 419 of 1992
GENERAL DIVISION

JUDGES MAKING ORDER:	LOCKHART, WILCOX and BURCHETT JJ.
DATE ORDER MADE:	14 SEPTEMBER 1992
WHERE ORDER MADE :	SYDNEY

NOTE :	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

23 June, the solicitor for the applicant to the leave	filing and serving the notice of appeal was 19 June 1992. Until
application, Mateffy Per1 Nagy Pty Limited, mistakenly thought that the period for filing and serving a notice of appeal from a judgment of a single Judge of this Court was 28 days and he appears to have been encouraged in that belief by the advice of senior counsel.
The solicitor, when he realised his mistake, immediately wrote a letter to the solicitors for the respondent to this application asking for consent to the appeal being filed out of time. The consent was not forthcoming, so a couple of days later the application for leave to file the notice of appeal out of time was filed and served.
The application for leave is opposed on the ground that there is no arguable case in support of the appeal. The Court is not persuaded of the correctness of that argument. The case is substantially similar to Jess v Scott (1986) 12 FCR 187.
The Court is of the view that special reasons have been established to justify the making of the orders sought. The expression "special reasons" of course, is taken from Order 52 rule 15(2).

Date of Hearing	.	14 September 1992
Date of Judgment	.	14 September 1992