Stankovic v Peter Magee T/as Armstrong Legal

The applicant, Stankovic, sought to appeal a decision of the District Court of New South Wales. The dispute arose from a default judgment entered against the applicant, which the applicant subsequently sought to set aside. The application to set aside the judgment was dismissed by the District Court due to being filed out of time. The applicant then sought an extension of time to seek leave to appeal to the Court of Appeal.

The primary legal issues before the Court of Appeal were whether to grant an extension of time for the applicant to seek leave to appeal, and whether to grant leave to appeal itself. A further issue concerned the construction of Rule 36.16 of the Uniform Civil Procedure Rules 2005, which imposes a 14-day time limit for varying or setting aside an order after notice of the judgment has been given, and whether this rule applied in the circumstances given the timing of the notice of judgment. The applicant also sought orders for trial by jury and a declaration regarding the meaning of "dismiss", which were also before the Court.

The Court of Appeal considered the applicant's delay in filing the summons and the absence of alleged prejudice to the respondent. It determined that an extension of time to seek leave to appeal was warranted. Leave to appeal was granted, but conditionally upon the applicant lodging a draft defence within 21 days, demonstrating an arguable defence to the underlying costs proceedings. The Court also rejected the applicant's motion for an adjournment and dismissed the notice of motion seeking trial by jury and a declaration.

The Court ordered that the applicant's motion to adjourn be rejected, and extended time to seek leave to appeal to 29 August 2013. Leave to appeal was granted subject to the applicant lodging a draft defence within 21 days. Both parties were granted leave to approach the Registrar on three days' notice. The costs of the application were to be costs in the proceedings in the Court of Appeal, and the notice of motion seeking trial by jury and a declaration was dismissed.