Barrack Point Holdings Pty Ltd v Jenkins [2021] NSWCATAP 312

Barrack Point Holdings Pty Ltd v Jenkins [2021] NSWCATAP 312

The adjournment was granted because Mr Jenkins had consistently indicated that he wished to seek a higher compensation order, but did not appreciate that he needed to file his own Notice of Appeal, and his failure to do so was explained by changes in legal assistance, difficulty obtaining Legal Aid assistance, living in Queensland, and health issues. The resulting delay was not significant, the appeal would still be resolved without undue delay, and the appellant's prejudice from costs thrown away could be corrected by varying the earlier interlocutory position on costs and ordering Mr Jenkins to pay $1760.00 on finalisation of the appeal.

Jurisdiction
Australia
Judgment Date
28 September 2021
Procedural Posture
Appeal in the NSW Civil and Administrative Tribunal Appeal Panel Concerning a Residential Community Site Agreement Dispute Under the Residential (land Lease) Communities Act 2013 (nsw) / Procedural Ruling on Respondent's Application to Adjourn the Final Hearing of the Appeal and Directions for a Proposed Cross Appeal
Outcome
Respondent's adjournment application granted; appeal hearing adjourned with directions for any cross appeal and costs thrown away ordered against the respondent.
Legal Topics
['adjournment Application' 'cross Appeal' 'procedural Fairness' 'costs Thrown Away' 'leave for Legal Representation']
['practice and Procedure' 'residential Land Lease Communities' 'civil and Administrative Tribunal Procedure'] ['adjournment Application' 'cross Appeal' 'procedural Fairness' 'costs Thrown Away' 'leave for Legal Representation']

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Procedural Posture

Appeal in the NSW Civil and Administrative Tribunal Appeal Panel Concerning a Residential Community Site Agreement Dispute Under the Residential (land Lease) Communities Act 2013 (nsw) / Procedural Ruling on Respondent's Application to Adjourn the Final Hearing of the Appeal and Directions for a Proposed Cross Appeal

Legal Issues

  1. 1 ['Whether the final hearing of the appeal should be adjourned to allow the respondent to file an appeal in the nature of a cross appeal seeking a higher compensation order.' "Whether the respondent's explanation for not filing a Notice of Appeal, including difficulties obtaining legal assistance and health issues, justified an adjournment." 'Whether any prejudice to the appellant from adjournment, including irrecoverable legal costs, could be addressed by a costs order.']

Ratio Decidendi

The adjournment was granted because Mr Jenkins had consistently indicated that he wished to seek a higher compensation order, but did not appreciate that he needed to file his own Notice of Appeal, and his failure to do so was explained by changes in legal assistance, difficulty obtaining Legal Aid assistance, living in Queensland, and health issues. The resulting delay was not significant, the appeal would still be resolved without undue delay, and the appellant's prejudice from costs thrown away could be corrected by varying the earlier interlocutory position on costs and ordering Mr Jenkins to pay $1760.00 on finalisation of the appeal.

Court Disposition

Respondent's adjournment application granted; appeal hearing adjourned with directions for any cross appeal and costs thrown away ordered against the respondent.

Orders

  • ['The hearing is adjourned to 17 November 2021 at 10:15 am for a half day.' 'On or before 26 October 2021 the respondent (Jenkins) is to file and serve any appeal in the nature of a cross appeal together with: (a) all evidence from the original proceedings (if not already provided) relied upon for the purpose of the...