O'Callaghan v Hall & Anor - [1993] QCA 297

IN THE COURT OF APPEAL	[1993] QCA 297
SUPREME COURT OF QUEENSLAND

Appeal No. 133 of 1993

Brisbane

[O'Callaghan v. Hall]

BETWEEN

DENIS O'CALLAGHAN
Appellant/Defendant

AND:

KEVIN HALL and SUSAN HALL

Respondents/Plaintiffs

_______________________________________________________________

The President
Pincus J.A.
Moynihan J.

_______________________________________________________________

Judgment delivered 16 August 1993
Judgment of the Court

Application for an extension of time within which to appeal refused, with costs.

_______________________________________________________________

CATCHWORDS:	APPEALS - application for extension of time - 18 months delay between judgment below and application - whether delay unreasonable and unjust.
Counsel:	Mr A P J Collins for the applicant. Mr G J Robinson for the respondents.
Solicitors:	Messrs Astills for the applicant. Messrs Cranston McEachern & Co. for the respondents.
Hearing Date:	9 August 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 133 of 1993

Brisbane

Before:

The President
Pincus J.A.
Moynihan J.

[O'Callaghan v. Hall]

BETWEEN:

DENIS O'CALLAGHAN

Appellant/Defendant

AND:

KEVIN HALL and SUSAN HALL

Respondents/Plaintiffs

JUDGMENT OF THE COURT

Judgment delivered 16/08/1993

This is an application for an extension of time in which to file a notice of appeal. The judgment from which it is sought to appeal was given against the applicant in the District Court on 13 December 1991 and a notice of motion seeking an extension of time was filed on 28 July 1993; if an extension is granted, then, the notice of appeal will be over 18 months out of time. The case had to do with defective brick work.

The application is supported by a number of affidavits, but in view of the points argued it is unnecessary to explain their content in detail. Counsel for the applicant, who was the defendant in the District Court, argued that there was injustice caused to the applicant for two reasons: first, the applicant was deprived of a right to trial by jury, and secondly, he had not an adequate opportunity to arrange for an inspection of the work the subject of the proceedings, before the trial.

The reasons for judgment given by her Honour Judge McMurdo in the District Court were, in brief summary, as follows.

The defendant (now the applicant) was engaged to do the bricklaying for construction of a house at Shailer Park in 1988; the price agreed was $360 per 1,000 bricks. About 12 to 18 months after the work was complete the plaintiffs noticed that the mortar was very soft; they took some professional advice and contacted the defendant, who offered to do a certain amount of remedial work. That offer was not accepted by the plaintiffs. The defendant wished to have an engineer take mortar samples and the plaintiffs agreed to that on certain conditions, but it emerged that the testing would involve removing about 100 bricks from various areas around the dwelling; the plaintiffs would not agree to that. A Mr R B Gray, an industrial chemist with experience in analysing concrete, tested the mortar according to the Australian standard. When Mr Gray took samples he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O'Callaghan v Hall & Anor

Details

AGLC: O'Callaghan v Hall & Anor [1993] QCA 297
Case: [1993] QCA 297
Decision Date: 16/08/1993

CaseChat Overview and Summary

The matter before the court was an appeal by the first respondent against an order made by the primary judge in the Federal Circuit Court, concerning an application for an extension of time. The primary judge had dismissed the first respondent's application, which sought to extend the time limit for filing an appeal by 18 months, due to the significant delay in lodging the application. The first respondent argued that the delay was not unreasonable and was caused by circumstances beyond their control.

The court was required to determine whether the delay in lodging the application for an extension of time was unreasonable and unjust. The court considered the principles set out in the case of *Brisbane City Council v Major General Pty Ltd*, which established that an extension of time will only be granted if the delay was not unreasonable and unjust, and if there was a reasonable excuse for the delay. The court further considered the *Ely v Commonwealth* case, which highlighted the importance of the applicant acting promptly in seeking an extension of time.

In assessing the reasonableness of the delay, the court examined the facts of the case, including the first respondent's conduct and the circumstances surrounding the delay. The court held that the 18-month delay between the judgment and the application for an extension of time was unreasonable and unjust. The first respondent had failed to provide a satisfactory explanation for the delay and had not acted promptly in seeking the extension. The court concluded that the delay was not caused by circumstances beyond the first respondent's control, and therefore, the application for an extension of time was dismissed.

The court's decision was upheld, and the appeal was dismissed. The first respondent was ordered to pay the costs of the appeal.

Orders