Yu v Speirs

The appeal concerned an application for an extension of time to commence proceedings under section 60C(2) of the *Limitation Act 1969* (NSW). The applicants, the plaintiffs in the original proceedings, sought to extend the time within which to file a statement of claim against the respondents, the defendants. The primary judge had refused the application for an extension of time.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that it was not "just and equitable" to extend the time for the plaintiffs to commence proceedings, and whether the primary judge erred in ordering the unsuccessful defendants to pay their own costs of the application. In determining whether to grant an extension of time, the court was required to consider whether the plaintiffs had demonstrated a viable cause of action and whether the delay had caused substantial prejudice to the defendants.

The Court of Appeal held that the primary judge had erred in her assessment of the plaintiffs' prospects of success. Her Honour found that the plaintiffs had provided sufficient evidence to establish a *prima facie* case, and that the prejudice claimed by the defendants was not substantial enough to outweigh the plaintiffs' right to pursue their claim. The court also found that the primary judge had erred in her costs order, stating that it was not appropriate to order the unsuccessful defendants to pay their own costs in circumstances where the plaintiffs had been unsuccessful in their application for an extension of time.

The Court of Appeal ordered that the appeal be allowed, the orders of the primary judge be set aside, and that the plaintiffs be granted an extension of time to file their statement of claim. The court further ordered that the defendants pay the plaintiffs' costs of the application for an extension of time, and that the costs of the appeal be determined.