FEDERAL COURT OF AUSTRALIA
Naxatu Pty Limited v Perpetual Trustee Company Limited [2011] FCA 823
Citation: Naxatu Pty Ltd v Perpetual Trustee Company Ltd [2011] FCA 823 Appeal from: Application for leave to appeal: Naxatu Pty Limited v Perpetual Trustee Company Limited; In the Matter of Sterling Estates Development Corporation Pty Limited (Receivers and Managers Appointed) (Subject to a Deed of Company Arrangement) [2011] FCA 669 Parties: NAXATU PTY LIMITED v PERPETUAL TRUSTEE COMPANY LIMITED File number: NSD 1107 of 2011 Judge: ROBERTSON J Date of judgment: 19 July 2011 Catchwords: PRACTICE AND PROCEDURE – leave to file and serve a notice of appeal out of time – whether special reasons – solicitor’s mistake – personal costs order Legislation: Federal Court Rules (Cth) O 3 r 2(3), O 52 r 15(2) Cases cited: Jess v Scott (1986) 12 FCR 187 applied
Parker v The Queen [2002] FCAFC 133 applied
Perpetual Trustee Company Ltdv Smithand Others (2010) 186 FCR 566 cited
Perry v Comcare [2006] FCA 481 distinguishedDate of hearing: 19 July 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: Mr J Thomson Solicitor for the Applicant: Cara Marasco & Company Counsel for the Respondent: Mr P Dowdy Solicitor for the Respondent: Norton Rose
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1107 of 2011
BETWEEN: NAXATU PTY LIMITED
ApplicantAND: PERPETUAL TRUSTEE COMPANY LIMITED
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
19 JULY 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave be granted to the applicant to file and serve a notice of appeal by 4:00 pm on 20 July 2011 in or substantially in the form of the document entitled ‘Notice of Appeal’ and stamped ‘filed 6 July 2011’.
2.The respondent’s costs of the application for leave be paid by the applicant’s solicitor personally.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1107 of 2011
BETWEEN: NAXATU PTY LIMITED
ApplicantAND: PERPETUAL TRUSTEE COMPANY LIMITED
Respondent
JUDGE:
ROBERTSON J
DATE:
19 JULY 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This is an application under O 52 r 15(2) of the Federal Court Rules for leave to file and serve a notice of appeal out of time. There is, in fact, a document entitled “notice of appeal” in the matter and which is stamped as filed on 6 July 2011. In substance the application is for leave to file and serve that notice of appeal.
The issue is whether there are “special reasons”, within the meaning of O 52 r 15(2), for giving leave.
The principles were established by the decision of the Full Court in Jess v Scott (1986) 12 FCR 187 especially at 195-196, in particular:
What is needed to justify an…
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- AGLC
- Naxatu Pty Ltd v Perpetual Trustee Company Ltd [2011] FCA 823
- Case
- [2011] FCA 823
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the applicant could demonstrate "special reasons" justifying an extension of time to file a notice of appeal, and if so, whether the respondent would suffer any prejudice. The applicant argued that its solicitors' error in calculating the deadline constituted an acceptable explanation for the delay. The respondent contended that while there was no prejudice, the applicant had not shown special circumstances to warrant an extension. The respondent did not argue against the merits of the appeal itself.
The court considered the principles set out in Jess v Scott, noting that extensions of time are not to be granted lightly and that the merits of the appeal could be a factor in the decision. The court held that the applicant had provided an acceptable explanation for the delay, given the relatively short period missed and the lack of prejudice to the respondent. The court also noted that the respondent had been aware of the applicant's intention to appeal. Consequently, the court granted leave for the applicant to file the notice of appeal by a specified date and ordered that the respondent's costs of the application be paid by the applicant's solicitor personally.
Orders
Orders of the court
1. Leave be granted to the applicant to file and serve a notice of appeal by 4:00 pm on 20 July 2011 in or substantially in the form of the document entitled ‘Notice of Appeal’ and stamped ‘filed 6 July 2011’.
2. The respondent’s costs of the application for leave be paid by the applicant’s solicitor personally.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The proposed notice of appeal was in fact filed on 6 July 2011. Consideration As I have indicated, the relevant principles set out in Jess v Scott (above). I also note that in Jess v Scott the Court granted leave subject to the condition, which the applicant’s solicitor offered to accept, that the respondents’ cost of the application be borne by the applicant’s solicitor personally. In the present case the respondent makes no submission with respect to the merits of the present application for leave and submitted that it is a matter for the Court as to whether special reasons are sufficiently made out to justify leave being granted. Thus the respondent does not submit that the grounds of appeal are not proper grounds or that the respondent will suffer prejudice if leave be granted to the applicant. The respondent does refer to the unreported decision in Perryv Comcare [2006] FCA 481 at [8] which I have considered above. The respondent also points out that the evidence is less than complete as to what was occurring between the date of the judgment of Foster J and the conversation between the solicitors for the applicant on 1 July 2011 which is illustrative of their error: the last date for filing was referred to as 8 July rather than 1 July. The discretion is to be exercised having regard to all relevant factors in assessing whether those factors taken together take the case out of the ordinary. I adopt the observations in Parker v The Queen [2002] FCAFC 133 at [6], which have been applied by a later Full Court in Perpetual Trustee Company Ltdv Smithand Others (2010) 186 FCR 566 at [13]:1.Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;2.Action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;3.Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;4.However, the mere absence of prejudice is not enough to justify the grant of an extension; and5.The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. In the present case I take into account, in particular:·the relatively short period of time for which leave is required;·the need for leave which is due to a mistake on the part of the present applicant’s solicitors as to the prescribed time for appealing;·that, although in a different context, the present respondent had been put on notice of the applicant’s intention to appeal, by the correspondence exchanged before 1 July 2011. ·the lack of prejudice to the respondent; and·the merits of the substantive proposed appeal.