LINFOX AUSTRALIA PTY LTD v KHOURY (NO. 2) [2008] NSWCA 24

LINFOX AUSTRALIA PTY LTD v KHOURY (NO. 2) [2008] NSWCA 24

The application was dismissed because Linfox provided no admissible evidence explaining its delay in seeking to challenge the Judicial Registrar's decision, had known of the proposed proceedings and relevant repair documents well before seeking to cross-claim, could have sought to cross-claim earlier, and the proposed cross-claim would further delay a matter ready for trial to the plaintiff's prejudice. In those circumstances, an appeal on a matter of practice and procedure had no real prospects of success.

Jurisdiction
Australia
Judgment Date
04 March 2008
Procedural Posture
Application for Leave to File Out of Time a Summons Seeking Leave to Appeal From an Interlocutory District Court Decision Refusing Leave to File a Cross Claim / Court of Appeal Leave Application
Outcome
Application for leave to file out of time a summons seeking leave to appeal dismissed.
Legal Topics
['leave to Appeal' 'extension of Time' 'cross Claim' 'limitation Period' 'prejudice' 'indemnity Costs']
['civil Procedure' 'appellate Procedure' 'motor Accidents Compensation'] ['leave to Appeal' 'extension of Time' 'cross Claim' 'limitation Period' 'prejudice' 'indemnity Costs']

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

Application for Leave to File Out of Time a Summons Seeking Leave to Appeal From an Interlocutory District Court Decision Refusing Leave to File a Cross Claim / Court of Appeal Leave Application

Legal Issues

  1. 1 ["Whether Linfox should be granted leave to file out of time a summons seeking leave to appeal from the Judicial Registrar's refusal to permit a cross-claim against Flexfleet Pty Ltd." "Whether the delay in seeking to file the cross-claim and in seeking to challenge the Judicial Registrar's decision was adequately explained." "Whether the proposed appeal had real prospects of success in circumstances where the plaintiff's proceedings were ready for trial and the proposed cross-claim would cause further delay and prejudice."]

Ratio Decidendi

The application was dismissed because Linfox provided no admissible evidence explaining its delay in seeking to challenge the Judicial Registrar's decision, had known of the proposed proceedings and relevant repair documents well before seeking to cross-claim, could have sought to cross-claim earlier, and the proposed cross-claim would further delay a matter ready for trial to the plaintiff's prejudice. In those circumstances, an appeal on a matter of practice and procedure had no real prospects of success.

Court Disposition

Application for leave to file out of time a summons seeking leave to appeal dismissed.

Orders

  • ['Dismiss the application for leave to file out of time a summons seeking leave to appeal.' "Applicant to pay the respondent's costs, such costs to be assessed on an indemnity basis from 17 October 2007."]