John Christopher Gazecki v McCabes Lawyers Pty Limited [2019] NSWDC 566

John Christopher Gazecki v McCabes Lawyers Pty Limited [2019] NSWDC 566

The plaintiff failed to provide an adequate explanation for the 30-day delay and the appeal had no real prospect of success. Even considering the circumstances, the explanation was insufficient and the grounds upon which the appeal was based were not likely to succeed. Prejudice to the defendant existed, but even absent that, the application lacked merit. Accordingly, leave to commence proceedings out of time was refused and the proceedings dismissed.

Parties
Plaintiff, Applicant: John Christopher Gazecki; Defendant, Respondent: McCabes Lawyers Pty Limited
Jurisdiction
Australia
Judgment Date
11 October 2019
Procedural Posture
Civil / Application for Extension of Time to Appeal; Judgment on Application
Outcome
Leave to commence proceedings out of time refused; Amended summons dismissed; Plaintiff to pay defendant’s costs.
Legal Topics
Costs Assessment, Extension of Time, Solicitor Client Costs, Appeal Procedure
Civil Procedure Costs Assessment Extension of Time Solicitor Client Costs Appeal Procedure

Case Brief

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Parties

John Christopher Gazecki

Plaintiff, Applicant

McCabes Lawyers Pty Limited

Defendant, Respondent

Procedural Posture

Civil / Application for Extension of Time to Appeal; Judgment on Application

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to commence proceedings out of time to appeal a costs review panel decision
  2. 2 Whether the plaintiff's explanation for delay is adequate
  3. 3 Whether the prospects of success for the appeal justify an extension of time

Ratio Decidendi

The plaintiff failed to provide an adequate explanation for the 30-day delay and the appeal had no real prospect of success. Even considering the circumstances, the explanation was insufficient and the grounds upon which the appeal was based were not likely to succeed. Prejudice to the defendant existed, but even absent that, the application lacked merit. Accordingly, leave to commence proceedings out of time was refused and the proceedings dismissed.

Court Disposition

Leave to commence proceedings out of time refused; Amended summons dismissed; Plaintiff to pay defendant’s costs.

Orders

  • The plaintiff's application for leave to commence the proceedings out of time is refused.
  • The amended summons is dismissed.