PENRITH WHITEWATER STADIUM LTD v LESVOS ENTERPRISES PTY LTD [2007] NSWCA 131

PENRITH WHITEWATER STADIUM LTD v LESVOS ENTERPRISES PTY LTD [2007] NSWCA 131

Basten JA was not persuaded that, sitting alone, he had power to set aside the Registrar's order striking out the notice of contention. If that power existed, his Honour would have extended time and set aside the Registrar's order because the notice of contention did not seek any variation of the orders below, so a cross-appeal was not required, and the late filing and service caused inconvenience but no undue prejudice that would justify preventing the respondents from relying on substantive contentions on the appeal.

Jurisdiction
Australia
Judgment Date
28 May 2007
Procedural Posture
Appeal From Registrar, Court of Appeal; Application to Set Aside Order Striking Out Notice of Contention / Motion Before Single Judge of Appeal
Outcome
Directions made; costs of the motion ordered to be costs in the appeal. The setting aside of the Registrar's order was left to be dealt with by the Court at the hearing of the appeal because Basten JA was not persuaded he had power to do so sitting alone.
Legal Topics
['power of Single Judge of Appeal to Review Decision of Registrar' 'notice of Contention' 'cross Appeal' 'extension of Time' 'delay in Filing and Service' 'costs of Motion']
['civil Procedure' 'appellate Procedure'] ['power of Single Judge of Appeal to Review Decision of Registrar' 'notice of Contention' 'cross Appeal' 'extension of Time' 'delay in Filing and Service' 'costs of Motion']

Case Brief

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Procedural Posture

Appeal From Registrar, Court of Appeal; Application to Set Aside Order Striking Out Notice of Contention / Motion Before Single Judge of Appeal

Legal Issues

  1. 1 ["Whether a single Judge of Appeal had power to set aside or review the Registrar's order striking out the respondents' notice of contention." 'Whether the respondents were required to file a notice of cross-appeal rather than a notice of contention where no variation of the orders below was sought.' 'Whether the notice of contention should remain struck out because it was filed and served late.']

Ratio Decidendi

Basten JA was not persuaded that, sitting alone, he had power to set aside the Registrar's order striking out the notice of contention. If that power existed, his Honour would have extended time and set aside the Registrar's order because the notice of contention did not seek any variation of the orders below, so a cross-appeal was not required, and the late filing and service caused inconvenience but no undue prejudice that would justify preventing the respondents from relying on substantive contentions on the appeal.

Court Disposition

Directions made; costs of the motion ordered to be costs in the appeal. The setting aside of the Registrar's order was left to be dealt with by the Court at the hearing of the appeal because Basten JA was not persuaded he had power to do so sitting alone.

Orders

  • ['Appellants to file written submission in reply responding to the contentions relied upon by the respondents in their written submissions, by 15 June 2007.' 'The parties be prepared to argue the matters raised by the notice of contention at the hearing of the appeal on 5 and 6 July 2007.' 'The costs of the motion...