PENRITH WHITEWATER STADIUM LTD v LESVOS ENTERPRISES PTY LTD [2007] NSWCA 131

New South Wales Court of Appeal

CITATION: PENRITH WHITEWATER STADIUM LTD v LESVOS ENTERPRISES PTY LTD [2007] NSWCA 131 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 May 2007 JUDGMENT OF: Basten JA at 1

EX TEMPORE JUDGMENT DATE: 28 May 2007

DECISION: (1) Appellants to file written submission in reply responding to the contentions relied upon by the respondents in their written submissions, by 15 June 2007; (2) The parties be prepared to argue the matters raised by the notice of contention at the hearing of the appeal on 5 and 6 July 2007; (3) The costs of the motion be costs in the appeal.

CATCHWORDS: APPEAL - from Registrar, Court of Appeal - application to set aside order of the Registrar striking out a notice of contention - power of single judge of appeal to review decision of Registrar - Supreme Court Act 1970 (NSW) ss 42, 46 - Uniform Civil Procedure Rules, Part 49, Div 4 - Supreme Court Rules, Prt 61 - PROCEDURE - notice of cross-appeal not required when no variation of order sought - PROCEDURE - notice of contention - striking out notice - delay in filing and service - challenge to findings of trial judge

Civil Procedure Act 2005 (NSW), s 135, Schedule 6, cl 9 Constitution, s 73 LEGISLATION CITED: Supreme Court Act 1970 (NSW), ss 42, 46 Supreme Court Rules 1970 (NSW), Part 51, rr 18, 21, 58, Part 61, r4 Trade Practices Act 1974 (Cth), ss 51AA, 52, 82 Uniform Civil Procedure Rules, r 12.8, Part 49, Div 4

Driclad Pty Ltd v Federal Commissioner of Taxation (1966-68) 121 CLR 45 CASES CITED: Emmett v Hornsby Shire Council [2002] NSWCA 75 Queensland v JL Holdings Pty Ltd (1996-97) 189 CLR 146 Wentworth v Graham (2002) 55 NSWLR 638