Penrith Whitewater Stadium Ltd v Lesvos Enterprises Pty Ltd

This matter came before Basten JA of the Court of Appeal of New South Wales concerning an application to set aside an order of the Registrar that struck out a notice of contention. The dispute arose from the filing and service of this notice, which challenged findings of the trial judge, and the subsequent delay in its lodgement.

The primary legal issue before the Court was whether a single judge of the Court of Appeal possessed the power to review and set aside an order made by the Registrar striking out a notice of contention. Ancillary to this was the question of whether, if such power existed, the notice of contention should be permitted to stand, notwithstanding the delay in its filing and service, to allow for the agitation of substantive issues that might provide an alternative basis for upholding the trial judge's orders.

Basten JA considered the relevant provisions of the *Supreme Court Act 1970* (NSW) and the Uniform Civil Procedure Rules. While expressing the view that he lacked the power to set aside the Registrar's order, his Honour indicated that if he had possessed such power, he would have exercised it to allow the notice of contention to stand. This approach was informed by the principle that substantive issues litigated below, which could support the trial judge's decision, should be permitted to be raised on appeal, citing *Queensland v JL Holdings Pty Ltd*. The Court determined that permitting the notice to stand would not cause undue prejudice and that the parties should be prepared to argue the matters raised by the notice of contention at the hearing of the appeal.

Consequently, Basten JA directed that the appellants file written submissions in reply responding to the contentions relied upon by the respondents, by 15 June 2007, and that the parties be prepared to argue the matters raised by the notice of contention at the appeal hearing on 5 and 6 July 2007. The costs of the motion were ordered to be costs in the appeal.