Krishna v Lovett

[2011] NSWCA 354

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Krishna v Lovett [2011] NSWCA 354

Hearing dates:

11 November 2011

Decision date:

11 November 2011

Before:

McColl JA at [1], [27], Tobias AJA at [26]

Decision:

Summons dismissed.  Applicant to pay respondent's 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 - extension of time to appeal - principles - proposed appeal 17 months out of time - whether proposed appeal has more substantial merit than being only fairly arguable

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Blackmore v Browne [2011] NSWCA 114
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61

Category:

Principal judgment

Parties:

Ben Krishna - applicant
Mark Lovett - first respondent
David Edward Verall - second respondent

Representation:

The Hon M Foley - applicant
D E Grieve QC with C J Smith - respondents
Raniga Lawyers - applicant
Somerville Laundry Lomax - respondents

File Number(s):

2011/00275700

Publication restriction:

No

 Decision under appeal 

Citation:

Ben Krishna & Uma Krishna v David Edward Verrall and Mark Lovett

Date of Decision:

2010-03-01 00:00:00

Before:

Blanch J DCJ

File Number(s):

812/06

Judgment

1. McCOLL JA : This is an application for an extension of time to appeal from a judgment of his Honour Chief Judge Blanch given on 1 March 2010. In those proceedings the applicant, Mr Ben Krishna, and his late wife, Mrs Uma Krishna (together the plaintiffs), sued the respondents in respect of the construction by the latter of a drain on the plaintiffs' property. The cause of action was in trespass. The pipes were installed on the plaintiffs' land in or about August 2001. The proceedings were commenced in the District Court in 2006.

1. It appears that when the matter came on for hearing before the primary judge in February 2010, it was agreed that the question whether the plaintiffs had consented to the pipes being installed on their land should be determined as a preliminary issue. His Honour resolved that issue in the respondents' favour and, accordingly, entered a verdict for the defendants and ordered the plaintiffs to pay their costs.

1. It is common ground that the plaintiffs had an appeal as of right, there having been a verdict for the defendants. However, the judgment having been given on 1 March 2010, the applicant took no further step in terms of commencing any appellate proceedings until 26 August 2011 when he filed a summons entitled as one seeking leave to appeal but framed as if it was a notice of appeal. As is apparent,…