Romeo v De Chiara Constructions Pty Limited [2012] NSWCA 190

Romeo v De Chiara Constructions Pty Limited [2012] NSWCA 190

The extension of time was granted only for an appeal confined to the stay or adjournment issue because Mr Romeo's argument that the proceedings should have been stayed after Mrs Romeo's bankruptcy was fairly arguable and De Chiara had been on notice of that argument since 5 March 2012 and identified no prejudice from delay. The extension was refused for the contract party/admission grounds because there was no fairly arguable case that the primary judge erred in refusing, implicitly, to permit withdrawal of verified admissions or in dealing with the issue on the pleadings, and De Chiara would have been prejudiced by the issue being raised for the first time at the hearing.

Jurisdiction
Australia
Judgment Date
21 June 2012
Procedural Posture
Application for Extension of Time to File and Serve a Notice of Appeal / Interlocutory Application in the Court of Appeal
Outcome
Extension of time granted in part, limited to a notice of appeal excluding grounds 1 to 5 inclusive and order 2(1) as sought; costs orders made.
Legal Topics
['appeal Out of Time' 'extension of Time' 'stay of Proceedings on Bankruptcy' 'adjournment Application' 'verified Admissions' 'building Contract']
['civil Procedure' 'bankruptcy' 'contracts'] ['appeal Out of Time' 'extension of Time' 'stay of Proceedings on Bankruptcy' 'adjournment Application' 'verified Admissions' 'building Contract']

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Procedural Posture

Application for Extension of Time to File and Serve a Notice of Appeal / Interlocutory Application in the Court of Appeal

Legal Issues

  1. 1 ["Whether time should be extended under UCPR r 51.9(1)(b) to file and serve a notice of appeal from Olsson DCJ's decision and orders made on 5 December 2011." 'Whether Mr Romeo had a fairly arguable case that the proceedings on the claim and cross-claim should have been stayed or adjourned because Mrs Romeo had become bankrupt.' 'Whether Mr Romeo had a fairly arguable case that Olsson DCJ erred in refusing to allow withdrawal of verified admissions and in finding that Mr Romeo was a party to the building contract.' 'Whether De Chiara would suffer prejudice if time were extended.']

Ratio Decidendi

The extension of time was granted only for an appeal confined to the stay or adjournment issue because Mr Romeo's argument that the proceedings should have been stayed after Mrs Romeo's bankruptcy was fairly arguable and De Chiara had been on notice of that argument since 5 March 2012 and identified no prejudice from delay. The extension was refused for the contract party/admission grounds because there was no fairly arguable case that the primary judge erred in refusing, implicitly, to permit withdrawal of verified admissions or in dealing with the issue on the pleadings, and De Chiara would have been prejudiced by the issue being raised for the first time at the hearing.

Court Disposition

Extension of time granted in part, limited to a notice of appeal excluding grounds 1 to 5 inclusive and order 2(1) as sought; costs orders made.

Orders

  • ['The applicant is granted an extension of time to file and serve a notice of appeal which excludes grounds 1 to 5 inclusive and order 2(1) as sought but is otherwise in the form of annexure A to the affidavit of Damian Phair sworn 21 June 2012.' "The applicant to pay the first respondent's costs thrown away by the...