Byron Shire Council v Ardill Payne & Partners [2019] NSWLEC 153

Byron Shire Council v Ardill Payne & Partners [2019] NSWLEC 153

The Court exercised its discretion to extend time because the delay was relatively small, the solicitor's miscalculation was a fair explanation, it was not unreasonable before the Court's recent decision for a solicitor to calculate time by reference to the LEC Rule rather than the UCPR, the appeal was not hopeless on its face, and the Respondent asserted no prejudice.

Jurisdiction
Australia
Judgment Date
29 October 2019
Procedural Posture
Class 1 S 56 a Appeal; Application to Extend Time for Commencement of Appeal / Notice of Motion and Amended Summons Seeking Extension of Time
Outcome
Leave to amend the Summons granted; time for commencement of the appeal extended to 27 August 2019; Notice of Motion dismissed; Appellant ordered to pay the Respondent's costs of the extension of time hearing.
Legal Topics
['extension of Time for Appeal' 'ucpr 50.3' 'exercise of Discretion' 'leave to Amend Summons']
['environment and Planning' 'practice and Procedure'] ['extension of Time for Appeal' 'ucpr 50.3' 'exercise of Discretion' 'leave to Amend Summons']

Case Brief

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Procedural Posture

Class 1 S 56 a Appeal; Application to Extend Time for Commencement of Appeal / Notice of Motion and Amended Summons Seeking Extension of Time

Legal Issues

  1. 1 ['Whether leave should be granted to amend the Summons in accordance with the Amended Summons filed 24 October 2019.' 'Whether the time for commencement of the s 56A appeal should be extended to 27 August 2019 under UCPR 50.3.']

Ratio Decidendi

The Court exercised its discretion to extend time because the delay was relatively small, the solicitor's miscalculation was a fair explanation, it was not unreasonable before the Court's recent decision for a solicitor to calculate time by reference to the LEC Rule rather than the UCPR, the appeal was not hopeless on its face, and the Respondent asserted no prejudice.

Court Disposition

Leave to amend the Summons granted; time for commencement of the appeal extended to 27 August 2019; Notice of Motion dismissed; Appellant ordered to pay the Respondent's costs of the extension of time hearing.

Orders

  • ['The Appellant be granted leave to amend the Summons in accordance with the Amended Summons filed 24 October 2019.' 'Pursuant to UCPR 50.3(1)(c) the time for commencement of the Appeal be extended to 27 August 2019.' "The Appellant is to pay the Respondent's costs of the hearing of the extension of time, as...