Durastyle Homes Pty Limited v Gosling [2023] NSWCATAP 111

Durastyle Homes Pty Limited v Gosling [2023] NSWCATAP 111

The Appeal Panel refused to extend time because, although the delay was only two days and caused by solicitors' administrative error, the appellant was a legally represented commercial litigant, the respondents had a vested right to retain the benefit of the decision after expiry of the appeal period, the interests of justice did not require departure from generally strict enforcement of time limits, and the proposed appeal against a discretionary costs order had low prospects of success. The costs order was likely governed by r 38 because both parties' claims exceeded $30,000, the respondents were successful in both claims, and the appellant did not show strong prospects of establishing...

Jurisdiction
Australia
Judgment Date
19 April 2023
Procedural Posture
Internal Appeal From Consumer and Commercial Division Costs Decision in Home Building Proceedings / Application to Extend Time to Lodge Notice of Appeal
Outcome
Leave to extend time to lodge the Notice of Appeal was refused.
Legal Topics
['extension of Time to Appeal' 'appeal Against Costs Order' 'ncat Internal Appeals' 'discretionary Costs Orders' 'time Limits']
['civil Procedure' 'administrative Law' 'consumer and Commercial' 'home Building' 'costs'] ['extension of Time to Appeal' 'appeal Against Costs Order' 'ncat Internal Appeals' 'discretionary Costs Orders' 'time Limits']

Case Brief

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Procedural Posture

Internal Appeal From Consumer and Commercial Division Costs Decision in Home Building Proceedings / Application to Extend Time to Lodge Notice of Appeal

Legal Issues

  1. 1 ['Whether time should be extended under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) for lodging a Notice of Appeal filed two days late.' 'Whether the proposed appeal against a discretionary costs order had sufficient prospects of success to justify an extension of time.' 'Whether r 38 of the Civil and Administrative Tribunal Rules 2014 applied because the amounts claimed or in dispute exceeded $30,000.' "Whether the Tribunal's costs discretion was arguably affected by error, including under House v The King [1936] HCA 40; 55 CLR 499."]

Ratio Decidendi

The Appeal Panel refused to extend time because, although the delay was only two days and caused by solicitors' administrative error, the appellant was a legally represented commercial litigant, the respondents had a vested right to retain the benefit of the decision after expiry of the appeal period, the interests of justice did not require departure from generally strict enforcement of time limits, and the proposed appeal against a discretionary costs order had low prospects of success. The costs order was likely governed by r 38 because both parties' claims exceeded $30,000, the respondents were successful in both claims, and the appellant did not show strong prospects of establishing...

Court Disposition

Leave to extend time to lodge the Notice of Appeal was refused.

Orders

  • ['Leave to extend time to lodge the Notice of Appeal is refused.']