Harding v Anton's Wire Products Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Harding v Anton's Wire Products Pty Ltd [2013] NSWCA 258

Hearing dates:

5 August 2013

Decision date:

08 August 2013

Before:

Meagher JA

Decision:

(1) Application to extend the time for filing of notice of appeal and amended notice of appeal dismissed.

(2) Applicant pay respondents' costs of the application.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - appeal - application to extend time for filing notice of appeal - whether applicant's case fairly arguable -application dismissed

Legislation Cited:

Supreme Court Act 1970, s 75A
Uniform Civil Procedure Rules 2005, r 51.16

Cases Cited:

Akins v National Australia Bank (1994) 34 NSWLR 155
Hampson v Hampson [2010] NSWCA 359
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Tjiong v Tjiong [2012] NSWCA 201
Tomko v Palasty (No 2) [2007] NSWCA 369

Category:

Principal judgment

Parties:

Reginald Bruce Harding (Applicant)
Anton's Wire Products Pty Ltd (First Respondent)
Antonio Carnevale (Second Respondent)

Representation:

Counsel:
Reginald Bruce Harding (in person) (Applicant)
D Hanna (Respondents)
Solicitors:
McDonnell Schroder (Respondents)

File Number(s):

2013/69484

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-07-20 00:00:00

Before:

Mahony DCJ

File Number(s):

10/391052

Judgment

1. MEAGHER JA: The applicant, Mr Harding, seeks an order under Uniform Civil Procedure Rules 2005, r 51.16(1)(c) for an extension of the time in which to file and serve his notice of appeal and amended notice of appeal. That proposed appeal is from the decision of Mahony DCJ delivered on 20 July 2012. Mr Harding filed a notice of intention to appeal on 20 August 2012. His notice of appeal was filed on 25 February 2013 and the amended notice of appeal on 5 June 2013.

1. The respondents (Anton's and Mr Carnevale) oppose that application on the basis that Mr Harding's grounds of appeal do not disclose a fairly arguable case on appeal. It should be noted at the outset that Mr Harding's delay in filing the notice of appeal and amended notice of appeal is not lengthy and the respondents do not point to any specific prejudice suffered as a result of that delay. Instead they maintain that they have a vested right to retain the judgment which is the subject of the proposed appeal. That right must be weighed in the balance against Mr Harding's interest in proceeding with his appeal.

1. In the proceedings before Mahony DCJ, Mr Harding was represented by a solicitor and counsel. He is acting for himself in the proceedings before this Court and maintains that the solicitor who acted for him at the trial…