Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114

Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114

Although Gilmore Finance's judicial review claim had arguable prospects, the interests of justice did not require or warrant an extension of time. Gilmore Finance knew there was a limited timeframe, received at least preliminary advice, decided in February 2018 not to challenge the District Court judgment, and paid the judgment sum. Granting an extension would undermine finality and cause prejudice to Aesthete, and the further litigation costs would be disproportionate to an amount in issue of no more than $65,000, particularly where any more favourable outcome on a further District Court costs appeal was uncertain.

Jurisdiction
Australia
Judgment Date
18 June 2020
Procedural Posture
Application for Judicial Review Under Supreme Court Act 1970 (nsw), S 69 and Application to Extend Time Under Ucpr, R 59.10(2), With Related Notice of Appeal / Court of Appeal of the Supreme Court of New South Wales Determining Application for Extension of Time, Amended Summons for Judicial Review, and Notice of Appeal
Outcome
Application to extend time refused; amended summons dismissed; notice of appeal dismissed; costs ordered against the applicant/appellant in favour of the first respondent.
Legal Topics
['costs Assessment' 'appeal by Way of Rehearing Under S 89 Legal Profession Uniform Law Application Act 2014 (nsw)' 'jurisdictional Error' 'extension of Time' 'finality of Litigation' 'proportionality of Litigation Costs']
['civil Procedure' 'costs' 'judicial Review' 'legal Profession'] ['costs Assessment' 'appeal by Way of Rehearing Under S 89 Legal Profession Uniform Law Application Act 2014 (nsw)' 'jurisdictional Error' 'extension of Time' 'finality of Litigation' 'proportionality of Litigation Costs']

Case Brief

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Procedural Posture

Application for Judicial Review Under Supreme Court Act 1970 (nsw), S 69 and Application to Extend Time Under Ucpr, R 59.10(2), With Related Notice of Appeal / Court of Appeal of the Supreme Court of New South Wales Determining Application for Extension of Time, Amended Summons for Judicial Review, and Notice of Appeal

Legal Issues

  1. 1 ['Whether time should be extended under UCPR, r 59.10(2) for Gilmore Finance to commence judicial review proceedings approximately 8 months out of time.' 'Whether the District Court arguably committed jurisdictional error by failing to conduct the costs assessment appeal as an appeal by way of rehearing under s 89(4) of the Legal Profession Uniform Law Application Act 2014 (NSW).' "Whether the interests of justice favoured an extension of time having regard to delay, the applicant's conduct, prejudice, arguable prospects, finality, and proportionality of costs."]

Ratio Decidendi

Although Gilmore Finance's judicial review claim had arguable prospects, the interests of justice did not require or warrant an extension of time. Gilmore Finance knew there was a limited timeframe, received at least preliminary advice, decided in February 2018 not to challenge the District Court judgment, and paid the judgment sum. Granting an extension would undermine finality and cause prejudice to Aesthete, and the further litigation costs would be disproportionate to an amount in issue of no more than $65,000, particularly where any more favourable outcome on a further District Court costs appeal was uncertain.

Court Disposition

Application to extend time refused; amended summons dismissed; notice of appeal dismissed; costs ordered against the applicant/appellant in favour of the first respondent.

Orders

  • ['Refuse the application to extend time made under UCPR, r 59.10(2).' 'Dismiss the amended summons filed on 2 March 2020.' 'Dismiss the notice of appeal in proceeding 2018/393204.' "The applicant (and appellant in that appeal) pay the first respondent's costs of the judicial review proceeding and appeal proceeding...