Gabriel v Grech [2018] NSWSC 1652

Gabriel v Grech [2018] NSWSC 1652

The amended motion was dismissed because the plaintiff had already made an application for extension of time in the amended summons before the competency motion was filed, that application remained extant and had not been abandoned, and any grant of further time under r 50.3(1)(c) would overcome an out-of-time filing. In addition, although it was unnecessary finally to decide the material date, there was a reasonable and substantial argument on the material before the Court that formal operative orders were made on 11 August 2017, so the appeal may have been filed within time.

Jurisdiction
Australia
Judgment Date
01 November 2018
Procedural Posture
Civil Procedure Motion in Appeal Proceedings From the Local Court of New South Wales Under Pt 50 of the Uniform Civil Procedure Rules 2005 (nsw) / Determination of the Second Defendant's Amended Notice of Motion Seeking Dismissal of the Plaintiff's Amended Summons as Incompetent Under R 50.16 a
Outcome
The amended motion was dismissed and costs were reserved.
Legal Topics
['competency of Appeal' 'extension of Time to Appeal' 'material Date for Appeal' 'uniform Civil Procedure Rules Pt 50' 'entry and Pronouncement of Orders']
['civil Procedure' 'appellate Procedure'] ['competency of Appeal' 'extension of Time to Appeal' 'material Date for Appeal' 'uniform Civil Procedure Rules Pt 50' 'entry and Pronouncement of Orders']

Case Brief

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Procedural Posture

Civil Procedure Motion in Appeal Proceedings From the Local Court of New South Wales Under Pt 50 of the Uniform Civil Procedure Rules 2005 (nsw) / Determination of the Second Defendant's Amended Notice of Motion Seeking Dismissal of the Plaintiff's Amended Summons as Incompetent Under R 50.16 a

Legal Issues

  1. 1 ['Whether the notice of motion should be heard and determined in advance of the hearing of the amended summons.' "Whether the plaintiff's appeal was incompetent because it was filed out of time under r 50.3 of the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether an appeal may be declared incompetent where an application for extension of time under r 50.3(1)(c) remains outstanding.' 'Whether the material date for the appeal was 10 March 2017 or 11 August 2017.' 'Whether there was a reasonable argument that formal operative orders dismissing the claim were made on 11 August 2017.']

Ratio Decidendi

The amended motion was dismissed because the plaintiff had already made an application for extension of time in the amended summons before the competency motion was filed, that application remained extant and had not been abandoned, and any grant of further time under r 50.3(1)(c) would overcome an out-of-time filing. In addition, although it was unnecessary finally to decide the material date, there was a reasonable and substantial argument on the material before the Court that formal operative orders were made on 11 August 2017, so the appeal may have been filed within time.

Court Disposition

The amended motion was dismissed and costs were reserved.

Orders

  • ['The amended motion is dismissed.' 'Costs are reserved.']