GALLAGHER v CHARANEKA [1993] NSWCA 104

GALLAGHER v CHARANEKA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 12 July 1993

[1993] NSWCA 104

Mahoney JA. This is an application for leave to file a Notice of Contention which is, admittedly, out of time. The circumstances have been referred to in argument and it is not necessary for me to canvass them.

Miss Needham, for the opponent to the application, has indicated that, except as to costs, her side is not prejudiced by the making of an order that the Notice of Contention may be filed and relied upon at the hearing.

The point raised by the Notice of Contention, namely, the right to relief under the Contracts Review Act, was a matter in contest at the hearing. The judge made a finding, or may be said to have made a finding — I do not pre-empt that issue — at the time of giving judgment and I am told that the matter was the subject of reference in written submissions filed. It was a live issue throughout the proceeding below.

It has been said that one of the reasons why the Notice of Contention was not filed in proper time was that there has been a change in the Rules. Under the previous Rules a Noticeof Contention could be filed a short time before the hearing, and the time for hearing was not fixed. I take those matters into account, although I do not think they are determinative of the issue.

The present application has been made by the respondent for relief from a failure to comply with the Rules. It was, in the circumstances, proper to oppose it. In all the circumstances, I think the proper order to be made is that leave be granted to the claimant to file a Notice of Contention in the form attached to the Notice of Motion within the next twenty-four hours and to rely upon it at the hearing of the appeal. The costs of the application for leave should be paid, in any event, by the applicant.