International Sports Marketing Pty Ltd v Oasis Development Corporation Pty Ltd [2009] NSWIRComm 34

International Sports Marketing Pty Ltd v Oasis Development Corporation Pty Ltd [2009] NSWIRComm 34

The primary judge made an error in the House v The King sense by failing to consider, or adequately consider, material facts bearing on the discretion: the appellants had a proffered explanation for filing one day late, based on an unchallenged affidavit that erroneous registry information was conveyed; one affidavit had already been filed; the late affidavit was the final affidavit in reply and largely rebuttal; the evidence was complete; the case had not been set down for hearing; and the respondents showed no real prejudice beyond the existence of the self-executing order and costs. Balancing justice between the parties, striking out the entire s 106 application for a one-day late...

Jurisdiction
Australia
Judgment Date
18 March 2009
Procedural Posture
Application for Leave to Appeal and Appeal Against Refusal to Extend Time for Filing Affidavit Evidence in Reply in S 106 Proceedings / Full Bench Appeal From Decision of Marks J Made on 29 October 2008
Outcome
Leave to appeal granted; appeal upheld; decision of Marks J made on 29 October 2008 set aside; time for filing affidavits in reply extended to 4 pm on 30 July 2008; appellants ordered to pay respondents' reasonable costs of the appeal as agreed or assessed.
Legal Topics
['appeal From Discretionary Decision' 'case Management Orders' 'self Executing Order' 'extension of Time' 'dismissal for Want of Prosecution' 'affidavit Evidence in Reply' 'costs']
['industrial Relations' 'civil Procedure'] ['appeal From Discretionary Decision' 'case Management Orders' 'self Executing Order' 'extension of Time' 'dismissal for Want of Prosecution' 'affidavit Evidence in Reply' 'costs']

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Procedural Posture

Application for Leave to Appeal and Appeal Against Refusal to Extend Time for Filing Affidavit Evidence in Reply in S 106 Proceedings / Full Bench Appeal From Decision of Marks J Made on 29 October 2008

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the discretionary decision refusing to extend time for filing affidavits in reply.' 'Whether the primary judge erred in refusing to vary the self-executing order where one affidavit in reply was filed one day late after incorrect registry information was conveyed to the appellants.' "Whether dismissal of the s 106 proceedings was a just and proportionate consequence of the appellants' non-compliance with case management orders."]

Ratio Decidendi

The primary judge made an error in the House v The King sense by failing to consider, or adequately consider, material facts bearing on the discretion: the appellants had a proffered explanation for filing one day late, based on an unchallenged affidavit that erroneous registry information was conveyed; one affidavit had already been filed; the late affidavit was the final affidavit in reply and largely rebuttal; the evidence was complete; the case had not been set down for hearing; and the respondents showed no real prejudice beyond the existence of the self-executing order and costs. Balancing justice between the parties, striking out the entire s 106 application for a one-day late...

Court Disposition

Leave to appeal granted; appeal upheld; decision of Marks J made on 29 October 2008 set aside; time for filing affidavits in reply extended to 4 pm on 30 July 2008; appellants ordered to pay respondents' reasonable costs of the appeal as agreed or assessed.

Orders

  • ['Leave to appeal is granted.' 'Appeal upheld and the decision of Marks J made on 29 October 2008 is set aside.' 'The time for the filing of affidavits in reply under order No 1 of the orders made by Marks J on 15 July 2008 in Matter No IRC 3558 of 2003 is extended to 4 pm on 30 July 2008.' 'The appellants are to...