Jingalong Pty Ltd v Todd

Case [2014] NSWCA 330


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Jingalong Pty Ltd v Todd [2014] NSWCA 330
Hearing dates:8 September 2014
Decision date: 19 September 2014
Before: McColl JA
Decision:

(1) Stay the orders made in Supreme Court proceedings 2012/344643 by Kunc J pending the hearing and determination of appeal proceedings 2014/137752.

(2) Order that the time within which to file the notice of appeal in proceedings 2014/137752 be extended to 7 August 2014.

(3) Dismiss Mr Pernice's notion of motion filed on 28 August 2014.

(4) Dismiss Mr Todd's notion of motion filed on 3 September 2014.

(5) Jingalong to pay the costs of its and the respondents' notices of motions.

(6) Expedite the hearing of the appeal.

(7) Direct the parties to approach the Court of Appeal Registrar to obtain a date for the hearing of the appeal and further directions for preparation for that hearing.

[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:

APPEAL - extension of time to file notice of appeal - relevant considerations - whether in interests of justice to extend time - UCPR 51.16 - failure to serve notice of intention to appeal - three month delay in filing notice of appeal - whether applicant should be left to remedy against legal representatives

APPEAL - stay - relevant considerations

PRACTICE - notice of intention to appeal filed but not served within 28 days of material date - whether a nullity or irregularity
Legislation Cited: Civil Procedure Act 2005 (NSW)
Interpretation Act 1987 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedures Rules 2005 (NSW)
Cases Cited: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685
Andresakis & Skouteris t/as Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWCA 294; (2006) 68 NSWLR 507
Atkinson v Zey [2008] NSWCA 30
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
Despot v Registrar General (NSW) [2012] NSWCA 160
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Ltd v Rickard Constructions Pty Ltd (subject to Deed of Company Arrangement) [2009] HCA 43; (2009) 239 CLR 75
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353
NSW Bar Association v Stevens [2003] NSWCA 95
Rust v Barnes [1980] 2 NSWLR 726
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 6
Traderight (NSW) Pty Ltd v…

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AGLC
Jingalong Pty Ltd v Todd [2014] NSWCA 330
Case
[2014] NSWCA 330
Decision Date

CaseChat Overview and Summary

Jingalong Pty Ltd appealed to the Court of Appeal of New South Wales against orders made by Kunc J in the Supreme Court. The primary dispute concerned Jingalong's application for an extension of time to file a notice of appeal, and a related application for a stay of the primary judge's orders.

The Court of Appeal was required to determine whether it was in the interests of justice to grant an extension of time for Jingalong to file its notice of appeal, notwithstanding a significant delay and a failure to serve a notice of intention to appeal within the prescribed period. The Court also considered whether the failure to serve the notice of intention to appeal rendered it a nullity or merely an irregularity, and whether Jingalong should be left to pursue a remedy against its legal representatives for the delay.

McColl JA considered the principles governing extensions of time under UCPR 51.16. Her Honour noted the three-month delay in filing the notice of appeal and the failure to serve the notice of intention to appeal within 28 days of the material date. Despite these issues, the Court found that it was in the interests of justice to grant the extension of time. The Court reasoned that the failure to serve the notice of intention to appeal was an irregularity rather than a nullity, and that the applicant should not be precluded from pursuing an appeal due to the actions of its legal representatives.

The Court ordered a stay of the orders made by Kunc J pending the hearing and determination of the appeal. It also ordered an extension of time for Jingalong to file its notice of appeal to 7 August 2014. The motions filed by Mr Pernice and Mr Todd were dismissed. Jingalong was ordered to pay the costs of its and the respondents' notices of motion, and the hearing of the appeal was expedited.

Orders

Orders of the court

(1) Stay the orders made in Supreme Court proceedings 2012/344643 by Kunc J pending the hearing and determination of appeal proceedings 2014/137752.

(2) Order that the time within which to file the notice of appeal in proceedings 2014/137752 be extended to 7 August 2014.

(3) Dismiss Mr Pernice's notion of motion filed on 28 August 2014.

(4) Dismiss Mr Todd's notion of motion filed on 3 September 2014.

(5) Jingalong to pay the costs of its and the respondents' notices of motions.

(6) Expedite the hearing of the appeal.

(7) Direct the parties to approach the Court of Appeal Registrar to obtain a date for the hearing of the appeal and further directions for preparation for that hearing.

[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.]

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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