Menzies & Anor. v. CRCI Pty. Limited [2007] NSWCA 118

Menzies & Anor. v. CRCI Pty. Limited [2007] NSWCA 118

Leave to appeal was refused because no appealable error was shown in the discretionary refusals. Christie DCJ was entitled to refuse leave to file the late cross-claim where it would vacate a long-delayed hearing, prior indulgences and directions had not been complied with, no explanation for non-compliance was given, limitation and separate-proceeding considerations were relevant to assessing prejudice and merit, and the indulgence sought was not justified. Donovan DCJ’s refusal of a stay and adjournment disclosed no error because the history of delay and non-compliance, lack of satisfactory explanation, absence of the principal party, and absence of material identifying further evidence...

Jurisdiction
Australia
Judgment Date
02 May 2007
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From District Court Decisions
Outcome
Application for leave to appeal refused with costs.
Legal Topics
['amendment' 'cross Claim Out of Time' 'adjournment' 'stay of Proceedings' 'discretionary Appellate Review' 'limitation Periods']
['civil Procedure' 'appellate Procedure'] ['amendment' 'cross Claim Out of Time' 'adjournment' 'stay of Proceedings' 'discretionary Appellate Review' 'limitation Periods']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From District Court Decisions

Legal Issues

  1. 1 ['Whether Christie DCJ made appealable error in refusing leave to file a cross-claim out of time.' 'Whether Donovan DCJ made appealable error in refusing a stay of proceedings pending the application for leave to appeal.' 'Whether Donovan DCJ made appealable error in refusing an adjournment sought at the hearing to seek a stay in the Court of Appeal and to file further evidence.']

Ratio Decidendi

Leave to appeal was refused because no appealable error was shown in the discretionary refusals. Christie DCJ was entitled to refuse leave to file the late cross-claim where it would vacate a long-delayed hearing, prior indulgences and directions had not been complied with, no explanation for non-compliance was given, limitation and separate-proceeding considerations were relevant to assessing prejudice and merit, and the indulgence sought was not justified. Donovan DCJ’s refusal of a stay and adjournment disclosed no error because the history of delay and non-compliance, lack of satisfactory explanation, absence of the principal party, and absence of material identifying further evidence...

Court Disposition

Application for leave to appeal refused with costs.

Orders

  • ['Application for leave to appeal refused with costs.']