Torrac Nominees Pty Ltd v Karabay; UWS Macarthur Sports & Recreation Association Inc v Karabay

The case of *Torrac Nominees Pty Ltd v Karabay* and *UWS Macarthur Sports & Recreation Association Inc v Karabay* involved appeals to the New South Wales Court of Appeal concerning the power of the District Court to set aside a preliminary dismissal order after the repeal of the relevant procedural rule. The dispute arose when a party sought to have a dismissal order set aside under a rule that had since been repealed.

The primary legal issue before the Court of Appeal was whether the District Court retained the power to make an order reinstating proceedings that had been preliminarily dismissed, particularly after the repeal of the District Court Rules 1973, and whether clause 10 of Schedule 6 of the *Civil Procedure Act 2005* was sufficient to support such a power. Specifically, the Court had to determine the meaning of "begun" within the transitional provisions, and whether an action that had been dismissed could be considered as still "begun" for the purposes of reinstatement.

The Court reasoned that while some authorities acknowledge that a "dead" action may be reinstated, until such action is taken, the proceeding remains "dead," meaning it is completed. Therefore, a dismissed action could not be considered as "begun" in a way that would allow for its continuation or completion under the transitional provisions. The Court distinguished between an action that is "begun" and an action that is "begun but already completed." Applying this interpretation, the Court concluded that the District Court Judge lacked the power to make the order setting aside the preliminary dismissal.

Consequently, the Court of Appeal granted leave to appeal restricted to the question of the District Court's power to make the order. The appeal was allowed, the order of the District Court Judge was set aside, and the respondent was ordered to pay the costs of the notice of motion in the court below and the costs of the appeal.