Cafe du Liban Pty Ltd v Bespoke Garage Pty Ltd [2018] NSWCA 234

Cafe du Liban Pty Ltd v Bespoke Garage Pty Ltd [2018] NSWCA 234

An extension of time was not in the interests of justice because the application was filed nine months out of time, the explanation for delay, especially from April 2018, was unsatisfactory, the respondent had incurred enforcement costs during the delay, there were failures to serve documents on the respondent, the proposed appeal raised no question of principle, and only the first proposed ground was reasonably arguable with a relatively small amount in issue.

Jurisdiction
Australia
Judgment Date
18 October 2018
Procedural Posture
Application for Extension of Time to Seek Leave to Appeal and Summons Seeking Leave to Appeal / Court of Appeal, on the Papers
Outcome
Application for extension of time refused; summons seeking leave to appeal dismissed; solicitor's application to cease acting granted.
Legal Topics
['extension of Time to Apply for Leave to Appeal' 'leave to Appeal' 'unexplained Delay' 'prejudice From Enforcement Costs' 'penalty Doctrine' 'chattel Hire Contract' 'supply Contract' 'probationary Period' 'reasonable Notice of Termination']
['practice and Procedure' 'appellate Procedure' 'contract Law'] ['extension of Time to Apply for Leave to Appeal' 'leave to Appeal' 'unexplained Delay' 'prejudice From Enforcement Costs' 'penalty Doctrine' 'chattel Hire Contract' 'supply Contract' 'probationary Period' 'reasonable Notice of Termination']

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 Extension of Time to Seek Leave to Appeal and Summons Seeking Leave to Appeal / Court of Appeal, on the Papers

Legal Issues

  1. 1 ['Whether the applicants should receive an extension of time to seek leave to appeal despite a nine-month delay.' 'Whether cl 12(b) of the Loan Contract was an unenforceable penalty.' 'Whether the Supply Contract and Loan Contract were subject to a three-month probationary period.' 'Whether the applicants should have been allowed to argue on appeal that the Supply Contract was for an unlimited term and terminable on reasonable notice.']

Ratio Decidendi

An extension of time was not in the interests of justice because the application was filed nine months out of time, the explanation for delay, especially from April 2018, was unsatisfactory, the respondent had incurred enforcement costs during the delay, there were failures to serve documents on the respondent, the proposed appeal raised no question of principle, and only the first proposed ground was reasonably arguable with a relatively small amount in issue.

Court Disposition

Application for extension of time refused; summons seeking leave to appeal dismissed; solicitor's application to cease acting granted.

Orders

  • ["Mr Ekes' application for leave to file and serve a notice of ceasing to act is granted." 'The application for extension of time in which to seek leave to appeal is refused.' 'The summons seeking leave to appeal is dismissed.' "The applicants are to pay the respondent's costs of the summons."]