Richards v Cornford (No 3) [2010] NSWCA 134 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
6 May 2010
JUDGMENT DATE:
11 June 2010
JUDGMENT OF:
Allsop P at 1; McColl JA at 127; Basten JA at 128
DECISION:
Orders on 6 May 2010 1. Order 3 in the notice of motion dated 8 March 2010 and filed by QBE Insurance (Australia) Limited (QBE) to the effect that QBE pay the costs of the respondents to the motion. 2. Otherwise dismiss the said motion seeking an extension of time within which to file and serve a notice of cross appeal.
CATCHWORDS:
PROCEDURE - Supreme Court procedure - New South Wales - out of time for filing of notice of cross-appeal under rules of court - application for extension of time - delay caused by party's own conduct - no steps taken for timely preparation of cross-appeal - Civil Procedure Act 2005 (NSW) ss 56-60 - duties of parties in the conduct of litigation - just and efficient determination of proceedings
Danielle Richards (Appellant) Ian Cornford (First Respondent) Taringha House Pty Ltd (Second Respondent) QBE Insurance (Australia) Ltd (Third Respondent)
FILE NUMBER(S):
CA 2009/298373
COUNSEL:
Ms S Norton SC, Mr M Daley (Appellant) Mr J E Rowe (First and Second…
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.
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Details
AGLC
Richards v Cornford (No 3) [2010] NSWCA 134
Case
[2010] NSWCA 134
Decision Date
CaseChat Overview and Summary
The New South Wales Court of Appeal, comprising Allsop P, McColl and Basten JJA, considered an application by QBE Insurance (Australia) Limited (QBE) for an extension of time to file and serve a notice of cross-appeal. The dispute arose from QBE's failure to file the notice within the prescribed time limits.
The primary legal issue before the Court was whether QBE should be granted an extension of time to file its notice of cross-appeal, notwithstanding the delay being attributable to its own conduct and a lack of timely preparation. This required the Court to consider the overarching duties imposed on parties by the *Civil Procedure Act 2005* (NSW), specifically sections 56 to 60, concerning the just and efficient determination of proceedings.
The Court reasoned that the delay in filing the notice of cross-appeal was substantial and directly resulted from QBE's own inaction and lack of diligence in preparing its case. Applying the principles of the *Civil Procedure Act 2005* (NSW), which mandates parties to conduct litigation justly and efficiently, the Court found that granting an extension of time would not serve these objectives. The Court emphasised that parties are expected to take all necessary steps to prepare their appeals within the stipulated timeframes.
Consequently, the Court dismissed QBE's motion seeking an extension of time to file and serve its notice of cross-appeal. QBE was ordered to pay the costs of the respondents to the motion.
Orders
Orders of the court
Orders on 6 May 2010
1. Order 3 in the notice of motion dated 8 March 2010 and filed by QBE Insurance (Australia) Limited (QBE) to the effect that QBE pay the costs of the respondents to the motion.
2. Otherwise dismiss the said motion seeking an extension of time within which to file and serve a notice of cross appeal.