WYKES and ORS v SAMILK PTY LTD and ORS [NO 2] [1998] NSWCA 268

WYKES and ORS v SAMILK PTY LTD and ORS [NO 2] [1998] NSWCA 268

The plaintiffs did not meet the absence of fault criterion for reopening the proceedings, as their failure to appeal or cross-appeal within time was due to oversight or fault of their solicitor. There was also no basis shown that the earlier judgment was made under misapprehension as to fact or law. The strict requirements for reopening litigation were not satisfied. Application refused.

Parties
Plaintiff: Wykes; First Defendant: Samilk Pty Ltd; Second Defendant: Partners in a law firm (second defendants)
Jurisdiction
Australia
Judgment Date
18 August 1998
Procedural Posture
Application for Leave to Appeal (or Cross Appeal) Out of Time / Post Appeal; Application to Reopen Judgment and for Leave to Cross Appeal
Outcome
Application for leave to appeal (and extension of time) refused with costs.
Legal Topics
Leave to Appeal Out of Time, Court's Discretion to Re Open Judgment, Finality of Litigation, Solicitor Negligence, Costs Orders
Civil Procedure Professional Negligence Leave to Appeal Out of Time Court's Discretion to Re Open Judgment Finality of Litigation Solicitor Negligence Costs Orders

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Parties

Wykes

Plaintiff

Samilk Pty Ltd

First Defendant

Partners in a law firm (second defendants)

Second Defendant

Procedural Posture

Application for Leave to Appeal (or Cross Appeal) Out of Time / Post Appeal; Application to Reopen Judgment and for Leave to Cross Appeal

Legal Issues

  1. 1 Whether the Court should grant leave to appeal (or cross-appeal) out of time against a verdict for the second defendants against the plaintiffs
  2. 2 Whether the plaintiffs (applicants) met the 'absence of fault' criterion for reopening a judgment in accordance with Wentworth v Woollahra Municipal Council
  3. 3 Whether jurisdiction to reopen extends beyond absence of fault to cases where there has been a misapprehension as to facts or law

Ratio Decidendi

The plaintiffs did not meet the absence of fault criterion for reopening the proceedings, as their failure to appeal or cross-appeal within time was due to oversight or fault of their solicitor. There was also no basis shown that the earlier judgment was made under misapprehension as to fact or law. The strict requirements for reopening litigation were not satisfied. Application refused.

Court Disposition

Application for leave to appeal (and extension of time) refused with costs.

Orders

  • Dismiss the notice of motion and summons for leave to appeal with costs.
  • The Notice of Motion for an extension of time to appeal and the Summons for leave to appeal should be dismissed with costs.