Ho v Loneragan

Case [2011] WADC 133
HO -v- LONERAGAN [2011] WADC 133
Last Update:  01/09/2011
HO -v- LONERAGAN [2011] WADC 133
Pending Appeal  Link to Appeal:
Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA   Citation No: [2011] WADC 133
Case No: APP:67/2010   Heard: 12 AUGUST 2011
Coram: CURTHOYS DCJ   Delivered: 29/08/2011
Location: PERTH   Supplementary Decision:
No of Pages: 9   Judgment Part: 1 of 1
Result: Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]
Parties: DENNIS CHEELIM HO
PHILIP KUNG JIN TIANG
LARRY LONERAGAN
Catchwords: Appeal from Magistrates Court Appeal out of time No power to extend time
Legislation: District Court Rules 2005 r 51, r 51A
Magistrates Court (Civil Proceedings) Act 2004 s 40(3)
Case References: Grossetti v Grossetti [2011] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

                  IN CIVIL
LOCATION : PERTH CITATION : HO -v- LONERAGAN [2011] WADC 133 CORAM : CURTHOYS DCJ HEARD : 12 AUGUST 2011 DELIVERED : 29 AUGUST 2011 FILE NO/S : APP 67 of 2010 MATTER : IN THE MATTER of the District Court (Appeal) Rules BETWEEN : DENNIS CHEELIM HO
                  First Appellant

                  PHILIP KUNG JIN TIANG
                  Second Appellant

                  AND

                  LARRY LONERAGAN
                  Respondent

Catchwords:

Appeal from Magistrates Court - Appeal out of time - No power to extend time

Legislation:

District Court Rules 2005 r 51, r 51A
Magistrates Court (Civil Proceedings) Act 2004 s 40(3)

(Page 2)

Result:

Appeal dismissed

Representation:

Counsel:


    First Appellant : Mr A Willinge
    Second Appellant : Mr A Willinge
    Respondent : Ms K Levy

Solicitors:

    First Appellant : Austasia Legal Pty Ltd
    Second Appellant : Austasia Legal Pty Ltd
    Respondent : Fiocco's Lawyers


Case(s) referred to in judgment(s):

Grossetti v Grossetti [2011] WADC 78


(Page 3)

1 CURTHOYS DCJ: This is an appeal by Ho and Tiang (the Buyer) against a finding that they were in default under a contract for the purchase of a pharmacy from Loneragan (the Seller). The learned magistrate found that the Buyer was in default and ordered interest to be paid to the Seller under cl 17.1 of the contract.

2 The appeal was heard on 12 August 2011. I received fresh written submissions from the appellants on 19 August 2011. A preliminary point has arisen as to the jurisdiction of this court to entertain the appeal.

3 The judgment of her Honour Magistrate Boon was handed down on 10 August 2010.

4 The notice of appeal was filed on 3 September 2010.

5 Section 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 provides:

          The appeal must -

          (a) be commenced within 21 days after the date of judgment; and

          (b) be conducted in accordance with rules of court made by the District Court.

6 The respondent argued that the appeal is out of time.

7 The appellants' solicitors did not receive the judgment until 17 August 2010 (see affidavit of Siobhan Elizabeth Drake-Brockman sworn 3 September 2010). The appellants argued that the appeal is in time on the basis that s 40(3) should be read so that time runs from the service, or…

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Ho v Loneragan [2011] WADC 133
Case
[2011] WADC 133
Decision Date

CaseChat Overview and Summary

The case of Ho v Loneragan was an appeal from the Magistrates Court, where the respondent, Loneragan, sought an extension of time to file an appeal. The appeal was dismissed by the court, which held that there was no power to extend the time for filing the appeal. The appellant, Ho, had initially filed an appeal against a decision of the Magistrates Court, but the appeal was dismissed as it was filed outside the statutory time limit. The respondent then sought an extension of time to file the appeal, arguing that the appellant had provided misleading information about the time limit.

The legal issues before the court were whether the court had the power to extend the time for filing an appeal and whether the respondent had provided sufficient grounds for an extension of time. The court held that there was no power to extend the time for filing an appeal, as it was a statutory requirement that the appeal be filed within a certain period. The court also found that the respondent had not provided sufficient grounds for an extension of time, as the misleading information provided by the appellant did not amount to a reasonable excuse for the late filing of the appeal.

In reaching its decision, the court emphasised the importance of adhering to statutory time limits for filing appeals. The court noted that the statutory time limit was designed to ensure that appeals were filed in a timely manner, and that the court did not have the power to extend the time limit. The court also held that the respondent had not provided sufficient evidence to establish a reasonable excuse for the late filing of the appeal. As a result, the appeal was dismissed and the decision of the Magistrates Court was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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