Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114

Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114

The 55-day delay was not trivial but was not gross or inordinate, occurred during the court vacation, the Respondents had notice from 11 February 2011 that the Appellants wished to appeal, the notice of appeal was filed within three months of the material date, the proposed appeal was fairly arguable and somewhat higher than merely fairly arguable, and the Respondents identified no prejudice beyond being out of their money. The justice of the case therefore required an extension of time. The s 101(2)(r) incompetence argument failed because the First Appellant had brought a single appeal against two respondents and the combined value of the judgments challenged exceeded $100,000. The...

Jurisdiction
Australia
Judgment Date
02 May 2011
Procedural Posture
Interlocutory Applications / Court of Appeal Notices of Motion for Extension of Time to File a Notice of Appeal and to Dismiss the Appeal as Incompetent
Outcome
Extension of time to file the notice of appeal granted; motion to dismiss the appeal as incompetent dismissed; Appellants ordered to pay the costs of both notices of motion.
Legal Topics
['extension of Time to Appeal' 'incompetent Appeal' 'leave to Appeal Monetary Threshold' 'notice of Appeal Filed Out of Time' 'costs of Interlocutory Motions']
['civil Procedure' 'appeal Procedure'] ['extension of Time to Appeal' 'incompetent Appeal' 'leave to Appeal Monetary Threshold' 'notice of Appeal Filed Out of Time' 'costs of Interlocutory Motions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Applications / Court of Appeal Notices of Motion for Extension of Time to File a Notice of Appeal and to Dismiss the Appeal as Incompetent

Legal Issues

  1. 1 ['Whether time should be extended under UCPR 50.3(i)(a) for filing the notice of appeal to 22 February 2011.' 'Whether the notice of appeal filed out of time should be dismissed as incompetent under UCPR 51.41.' "Whether the First Appellant's appeal against two related judgments each below $100,000 but together exceeding $100,000 required leave under s 101(2)(r) of the Supreme Court Act 1970." 'What costs orders should be made on the two notices of motion.']

Ratio Decidendi

The 55-day delay was not trivial but was not gross or inordinate, occurred during the court vacation, the Respondents had notice from 11 February 2011 that the Appellants wished to appeal, the notice of appeal was filed within three months of the material date, the proposed appeal was fairly arguable and somewhat higher than merely fairly arguable, and the Respondents identified no prejudice beyond being out of their money. The justice of the case therefore required an extension of time. The s 101(2)(r) incompetence argument failed because the First Appellant had brought a single appeal against two respondents and the combined value of the judgments challenged exceeded $100,000. The...

Court Disposition

Extension of time to file the notice of appeal granted; motion to dismiss the appeal as incompetent dismissed; Appellants ordered to pay the costs of both notices of motion.

Orders

  • ['On notice of motion filed 11 April 2011, grant extension of time for filing of Notice of Appeal. Applicants to pay costs of notice of motion.' 'On notice of motion filed 21 March 2011, dismiss notice of motion seeking to have appeal dismissed as incompetent. Applicants to pay costs of notice of motion.']