TOMKO v PALASTY (NO. 2) [2007] NSWCA 369

New South Wales Court of Appeal

CITATION: TOMKO v PALASTY (NO. 2) [2007] NSWCA 369

HEARING DATE(S): 3 December 2007

JUDGMENT DATE: 14 December 2007

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 17; Basten JA at 18

(1) Dismiss the application to review the Registrar's decision made on 3 September 2007.

(2) Dismiss the application for an extension of time to appeal from the judgment and orders of the District Court. DECISION: (3) Set aside subpoenas issued on behalf of Mr Palasty to the extent they remain unanswered.

(4) Mr Palasty to pay Mr Tomko's costs of the motion to review the Registrar's decision and related applications disposed of by this judgment.

EXTENSION OF TIME – length of delay – reason for delay – whether applicant has fairly arguable case – prospects of success – prejudice to respondent

PROCEDURE – review of decision of Registrar to refuse extension of time to file cross-appeal – where primary appeal dismissed before hearing of review of Registrar's decision – Supreme Court Rules 1970 (NSW), Part 51, r 18 CATCHWORDS: REVIEW – power to review decision of Registrar – exercise of discretionary powers – no requirement to demonstrate error in decision of Registrar – review not restricted to material before Registrar – Supreme Court Act 1970 (NSW), ss 46 and 121 – Uniform Civil Procedure Rules 2005 (NSW), r 49.19

WORDS & PHRASES – "at any time" – "cross-appeal" – "review"

Bankruptcy Act 1966 (Cth), s 296 Civil Procedure Act 2005 (NSW), Schedule 6, cl 9, Schedule 7 LEGISLATION CITED: Supreme Court Act 1970 (NSW), ss 46, 75A, 119, 121 Supreme Court Rules 1970 (NSW), Part 51, rr 2, 5, 6, 18, 56, Part 61, rr 3, 4 Uniform Civil Procedure Rules, rr 36.15, 36.16, 45.20, 49.19