Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 Hearing dates: 7 June 2013 Decision date: 07 June 2013 Before: Ward JA Decision: Dismiss the applicant's Notice of Motion dated 5 June 2013, with costs.
[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 - late withdrawal of legal representation - adjournment sought to seek further legal advice Legislation Cited: Civil Procedure Act 2005 Cases Cited: Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175
Jiwira Pty Ltd v Primary Industry Bank of Australia Ltd (Supreme Court of New South Wales, McLaughlin M, 17 February 1995, unreported)Category: Interlocutory applications Parties: Kenoss Pty Ltd (Applicant)
Palerang Council (Respondent)Representation: Counsel:
A Korakis (Applicant)
P Clay SC (Respondent)
Solicitors:
Gadens Lawyers (Applicant)
Bradley Allen Love Lawyers (Respondent)
File Number(s): 12/308877 Decision under appeal
- Jurisdiction:
- 9106
- Citation:
- Kenoss Pty Ltd v Palerang Council (No.2) [2012] NSWLEC 208
- Date of Decision:
- 2012-09-07 00:00:00
- Before:
- Biscoe J
- File Number(s):
- 12/10586
Judgment (Ex tempore)
WARD JA: This is an application brought by notice of motion by Kenoss Pty Limited seeking an order vacating the hearing date of its application for leave to appeal and appeal from a decision by Biscoe J in the Land and Environment Court. His Honour determined a separate question in proceedings before the Land and Environment Court as to the proper construction of a particular provision in the Yarrowlumla Local Environmental Plan 2002. The applicant filed a summons seeking leave to appeal from that decision on 5 October 2012.
I am informed by Senior Counsel for the respondent (Mr Clay SC) that the effect of the determination by Biscoe J of the separate question was that the development the subject of the application is prohibited and that, if leave to appeal were not to be granted from his Honour's decision or, if granted, the appeal were to be dismissed, then the proceedings in the Land and Environment Court would be at an end.
The matter was listed, in February this year, for a hearing on 12 June 2013, of the application for leave to appeal concurrently with the appeal itself. It is conceded by both parties that the issue in dispute on that appeal is limited to a discrete question of law. It relates to the statutory construction of a provision in the relevant planning instrument.
On the applicant's behalf a white book has been filed which contains the applicant's summary of argument in relation to the issues to be considered on the application for leave to appeal (and appeal).
There is included in that bundle…
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- Case
- [2013] NSWCA 174
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the primary judge erred in refusing the applicant's application for an adjournment and subsequently dismissing its application to set aside the default judgment. This involved considering the principles governing the grant or refusal of adjournments, particularly in circumstances where a party has recently lost legal representation, and the criteria for setting aside a default judgment under the Uniform Civil Procedure Rules 2005.
The Court of Appeal affirmed the principles that an adjournment is not a right but a matter of judicial discretion, to be exercised having regard to all the circumstances of the case. It noted that while the late withdrawal of legal representation is a significant factor, it does not automatically entitle a party to an adjournment. The Court found that the primary judge had properly considered the applicant's delay in seeking legal advice after the withdrawal of its solicitors and the lack of a satisfactory explanation for that delay. Furthermore, the Court was not satisfied that the applicant had demonstrated a meritorious defence to the respondent's claim, which is a necessary consideration when seeking to set aside a default judgment.
The Court of Appeal dismissed the applicant's Notice of Motion dated 5 June 2013, with costs.
Orders
Orders of the court
Dismiss the applicant's Notice of Motion dated 5 June 2013, with costs.
[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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