Gilles v Palmieri

In *Gilles v Palmieri*, the New South Wales Court of Appeal considered an appeal from a primary judge's refusal to grant an extension of time for service of a statement of liquidated claim. The claim was filed almost six years after tax invoices were rendered, and service was not effected until approximately nine months after filing. The appellants, the plaintiffs in the original proceedings, argued that the primary judge erred in refusing the extension, either by failing to provide adequate reasons or by misapprehending the scope of the court's power to extend time, or by exercising discretion incorrectly.

The central legal issues before the Court of Appeal were whether the primary judge had erred in law by failing to give sufficient reasons for the refusal to extend time, whether the primary judge had wrongly concluded that there was no power to extend time, or whether the primary judge had exercised their discretion on incorrect principles. The Court also had to consider whether, in the circumstances of the appeal, it should grant an extension of time for service, notwithstanding the lack of a full explanation for the significant delay and unsatisfactory aspects of the explanation provided.

The Court of Appeal found that the primary judge had not erred in law by failing to give reasons, nor had they wrongly concluded that there was no power to extend time. However, the Court determined that the primary judge had erred in the exercise of discretion. While acknowledging the unsatisfactory explanation for the delay, the Court allowed the appeal in part, setting aside the primary judge's order regarding costs and ordering that the plaintiffs pay the defendants' costs of the original proceedings. The appeal was otherwise dismissed, with the appellants ordered to pay the respondents' costs of the appeal.