Tay v Safetly Lawyers & ors [2000] NSWSC 844

Tay v Safetly Lawyers & ors [2000] NSWSC 844

The Local Court did not err in refusing to set aside the judgment because, despite real issues as to the merits of the defence, it was proper to consider the small amount of the claim, the number of previous appearances, and the additional costs of requiring further hearings. The $400 costs order was erroneous because costs were limited to $160, and that error justified granting leave to appeal out of time and varying the order. The later application was properly dismissed because it was merely an application for a rehearing of the application dismissed on 2 July 1999.

Jurisdiction
Australia
Judgment Date
24 August 2000
Procedural Posture
Appeal From Local Court Civil Claims Proceedings / Application for Leave to Appeal Out of Time and Appeal
Outcome
Leave to appeal out of time was granted for the 2 July 1999 orders; the appeal was allowed only as to costs and otherwise dismissed; the appeal concerning the later Local Court order was dismissed.
Legal Topics
['application to Set Aside Judgment' 'leave to Appeal Out of Time' 'small Claims Division' 'ex Parte Hearing' 'costs Limits' 'repeat Applications']
['civil Procedure' 'costs' 'local Court Appeals'] ['application to Set Aside Judgment' 'leave to Appeal Out of Time' 'small Claims Division' 'ex Parte Hearing' 'costs Limits' 'repeat Applications']

Case Brief

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Procedural Posture

Appeal From Local Court Civil Claims Proceedings / Application for Leave to Appeal Out of Time and Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to appeal out of time from the Local Court orders dated 2 July 1999.' 'Whether the Local Court erred in refusing to set aside the original judgment after the appellant failed to appear at the hearing.' 'Whether the $400 costs order made on 2 July 1999 exceeded the applicable costs limit.' 'Whether the Local Court erred on 28 April 2000 in refusing a further application to set aside the original judgment as a rehearing of the earlier dismissed application.']

Ratio Decidendi

The Local Court did not err in refusing to set aside the judgment because, despite real issues as to the merits of the defence, it was proper to consider the small amount of the claim, the number of previous appearances, and the additional costs of requiring further hearings. The $400 costs order was erroneous because costs were limited to $160, and that error justified granting leave to appeal out of time and varying the order. The later application was properly dismissed because it was merely an application for a rehearing of the application dismissed on 2 July 1999.

Court Disposition

Leave to appeal out of time was granted for the 2 July 1999 orders; the appeal was allowed only as to costs and otherwise dismissed; the appeal concerning the later Local Court order was dismissed.

Orders

  • ['I grant leave to appeal out of time in respect of the orders of the Local Court dated 2 July 1999.' 'I uphold that appeal in so far as it relates to the order for costs but otherwise dismiss the appeal and confirm the orders of the Local Court.' "The order for costs is set aside and in lieu thereof an order made...