James v Australia and New Zealand Banking Group Ltd

The applicant sought leave to appeal against a costs order made by Ball J in the Supreme Court of New South Wales. The appeal concerned a gross sum costs order, and the applicant contended that leave was required under section 101(2)(c) of the *Supreme Court Act 1970* (NSW) because the matter involved an issue of principle or general public importance, or alternatively, that there was insufficient evidence for the primary judge to make an informed costs assessment. The application for leave to appeal was filed out of time.

The Court of Appeal was required to determine whether to grant an extension of time for the applicant to seek leave to appeal, and if so, whether leave to appeal should be granted. Central to these questions was whether the primary judge's gross sum costs order was a proper exercise of power, given the alleged insufficiency of evidence to determine a reasonable amount and the question of whether an amount already paid could form the basis of calculation without information as to the work done. The court also considered whether any factual errors by the primary judge warranted intervention.

Basten and Simpson JJA refused the applicant an extension of time within which to seek leave to appeal. Their Honours reasoned that where an application for an extension of time is made, the court must consider whether leave to appeal would be granted if the extension were allowed. In this instance, the Court concluded that leave to appeal would not be granted, and therefore, it was appropriate to refuse the extension of time. The applicant was ordered to pay the respondents’ costs in the Court of Appeal.