Moubarak by his tutor Coorey v Holt (No 2)

The parties to this matter were Moubarak (by his tutor Coorey) as the appellant and Holt as the respondent. The dispute concerned an application for leave to appeal a decision of Wilson DCJ refusing a permanent stay of proceedings. The appeal was heard in the Court of Appeal of New South Wales by Bell P, Leeming JA, and Emmett AJA.

The primary legal issues before the Court of Appeal were whether leave to appeal should be granted, given the significant delay in filing the application, and whether the refusal of the permanent stay by the primary judge was correct. The court also considered the conduct of the parties in relation to pleadings and particulars, and the implications of delay in the context of ongoing District Court proceedings.

The Court of Appeal refused leave to appeal, finding that there was no compelling explanation for the substantial delay in seeking leave to appeal, particularly in circumstances where a trial in the District Court had already been set down for hearing. The court emphasised the importance of expedition in applications for leave to appeal concerning ongoing proceedings. Furthermore, the court noted the protracted and unsatisfactory "back and forth" regarding requests for particulars, which persisted for a year, and highlighted the obligation of practitioners to facilitate the overriding purpose of the *Civil Procedure Act 2005* (NSW) in the making and answering of such requests.

The court ordered that the respondent pay the appellant’s costs of the application for leave to appeal and the costs of and incidental to the hearing of the notice of motion determined by Wilson DCJ. However, the appellant was ordered to pay any costs incurred by the respondent in the period between 20 October 2018 and 24 April 2019 for the purposes of preparation for the District Court trial.