Teh v Dormer [2016] NSWLEC 42

Teh v Dormer [2016] NSWLEC 42

The application to extend time was refused because the delay of over 21 months was extraordinary, the applicant's explanation was unacceptable and inconsistent, the proposed appeal had no reasonable or rational prospects of success, and the prejudice to the executors and beneficiaries of Mr McLoughlin's estate if leave were granted vastly outweighed any prejudice to the applicant if leave were refused. It was fair and reasonable to order costs against the applicant because his unexplained delay caused unnecessary costs and the application had extremely remote prospects of success.

Jurisdiction
Australia
Judgment Date
22 April 2016
Procedural Posture
Class 2 Application for Leave to Appeal Out of Time Against a Decision of Commissioners Under S 56 a of the Land and Environment Court Act 1979 / Application to Extend Time to File Appeal
Outcome
Application to extend time to file appeal refused; applicant ordered to pay respondents' costs of the application.
Legal Topics
['extension of Time to Appeal' 'appeal on Question of Law' 'prejudice From Delay' 'prospects of Appeal' 'class 2 Costs']
['procedure' 'land and Environment' 'trees Disputes' 'costs'] ['extension of Time to Appeal' 'appeal on Question of Law' 'prejudice From Delay' 'prospects of Appeal' 'class 2 Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Class 2 Application for Leave to Appeal Out of Time Against a Decision of Commissioners Under S 56 a of the Land and Environment Court Act 1979 / Application to Extend Time to File Appeal

Legal Issues

  1. 1 ['Whether time should be extended under r 7.3 of the Land and Environment Court Rules 2007 for the applicant to commence a s 56A appeal nearly 21 months out of time.' "Whether the applicant's explanation for the delay was adequate." "Whether granting leave would prejudice the executors and beneficiaries of Mr McLoughlin's estate, and whether refusal would prejudice the applicant." 'Whether the proposed appeal had reasonable or rational prospects of success.' "Whether it was fair and reasonable to order the applicant to pay the respondents' costs of the application."]

Ratio Decidendi

The application to extend time was refused because the delay of over 21 months was extraordinary, the applicant's explanation was unacceptable and inconsistent, the proposed appeal had no reasonable or rational prospects of success, and the prejudice to the executors and beneficiaries of Mr McLoughlin's estate if leave were granted vastly outweighed any prejudice to the applicant if leave were refused. It was fair and reasonable to order costs against the applicant because his unexplained delay caused unnecessary costs and the application had extremely remote prospects of success.

Court Disposition

Application to extend time to file appeal refused; applicant ordered to pay respondents' costs of the application.

Orders

  • ['The application for an extension of time is dismissed.' "The applicant is to pay the respondents' costs of the application." 'The exhibits are to be returned after the publication of these reasons on the internet.']