Notaras v Dourmous [2024] NSWCATAP 42

Notaras v Dourmous [2024] NSWCATAP 42

The Tribunal erred by failing to consider the relatively short delay and the merits of the appellant's defence in her set aside application, and provided inadequate reasons for dismissing the application. The correct exercise of discretion, given the minor delay and arguable defence, was to extend time, set aside the dismissal, and remit the matter for rehearing.

Parties
Appellant: Irene Notaras; Respondent: Michael Dourmous
Jurisdiction
Australia
Judgment Date
21 March 2024
Procedural Posture
Appeal / Appeal Determination
Outcome
Appeal allowed; leave to appeal granted (to the extent necessary); set aside application order set aside; matter remitted for rehearing.
Legal Topics
Set Aside Application, Exercise of Discretion, Extension of Time, Practice and Procedure, Fair Hearing, Dismissal for Non Appearance
Administrative Law Civil Procedure Set Aside Application Exercise of Discretion Extension of Time Practice and Procedure Fair Hearing Dismissal for Non Appearance

Case Brief

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Parties

Irene Notaras

Appellant

Michael Dourmous

Respondent

Procedural Posture

Appeal / Appeal Determination

Legal Issues

  1. 1 Whether the Tribunal erred in dismissing the set aside application without considering relevant matters such as the length of the delay and the merits of the defence
  2. 2 Whether reasons for the Tribunal's decision were inadequate
  3. 3 Whether an extension of time for lodging the set aside application should be granted

Ratio Decidendi

The Tribunal erred by failing to consider the relatively short delay and the merits of the appellant's defence in her set aside application, and provided inadequate reasons for dismissing the application. The correct exercise of discretion, given the minor delay and arguable defence, was to extend time, set aside the dismissal, and remit the matter for rehearing.

Court Disposition

Appeal allowed; leave to appeal granted (to the extent necessary); set aside application order set aside; matter remitted for rehearing.

Orders

  • Leave to appeal is granted and the appeal is allowed.
  • The order made on 1 November 2023 in application HB 23/45687 (now application 2023/372393) is set aside and in lieu thereof it is ordered that: 1. The time to lodge the application to set aside is extended to 10 October 2023; 2. The order made by the Tribunal and application HB 23/41285 (now application 2023/376348)...