Wilson v Kochate Pty Limited t/as Caradon Ski Park [2003] NSWCA 25

New South Wales Court of Appeal

CITATION : Wilson v Kochate Pty Limited t/as Caradon Ski Park [2003] NSWCA 25 HEARING DATE(S) : 13/02/03 JUDGMENT DATE : 13 February 2003

JUDGMENT OF : Stein JA at 38; Hodgson JA at 39; Ipp JA at 1 DECISION : (1) Appeal upheld (2) Set aside orders made by Boyd-Boland DCJ on 24 October 2001 and on 2 May 2002 (3) Claimant to file Notice of Appeal as regards the current proceedings (4) Reinstate the District Court proceedings on the basis that no expert report is to be filed by the claimant that is not in response to any expert report filed by the opponent, unless the District Court gives leave for the filing of such report (5) Claimant's solicitors to pay the costs of the hearings on 24 October 2001 and 2 May 2002 on an indemnity basis. These costs are to be paid forthwith and opponent is entitled to have costs assessed forthwith (6) Opponent to pay the costs of the appeal. Opponent should have a Suitors Fund Certificate if otherwise entitled.

CATCHWORDS : PRACTICE AND PROCEDURE - District Court Rules, Pt 1 r 7A - Application to set aside a Preliminary Dismissal Order - Court must balance the prejudice between parties so as to do justice between parties - Regard to be had to actual prejudice suffered by claimant if application dismissed, and the actual prejudice that would be suffered by the opponent if application upheld - Gross carelessness of solicitor for claimant can be taken into account, but is not determinative in whether to set aside order - Expiration of limitation period was actual prejudice to opponent - Reinstatement of claim was not relevant prejudice to opponent - Absence of insurance cover was not relevant prejudice to opponent - Overall delay could not be said to prejudice opponent in the absence of evidence - Whether Preliminary Dismissal Order can be set aside only on court's own motion - Whether Preliminary Dismissal Order was so set aside. ND Erhard v Bhatia [2002] NSWCA 388 CASES CITED : Weston v Howell [1999] NSWCA 411 Howell v Weston [2001] NSWCA 174 PARTIES : Carol Margaret Wilson (Claimant) Kochate Pty Limited t/as Caradon Ski Park (Opponent) FILE NUMBER(S) : CA 40482/02 COUNSEL : I Wales SC/A Fernon (Claimant) S Galitsky (Opponent) SOLICITORS : Colin Daley Quinn (Claimant) Grech Partners (Opponent)