Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 350

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 350 Hearing dates: 17 September 2013 Decision date: 17 September 2013 Before: Emmett JA Decision: 1. Leave be granted to Glad Retail Cleaning Pty Limited to file an amended notice of appeal in the form attached to the affidavit of Mr Nicholas James Bell sworn on 10 September 2013 within 7 days of today. 2. The notice of motion filed on 28 August 2013 on behalf of Mirvac Real Estate Pty Limited, seeking an extension of time for filing a notice of appeal, be stood over to 11 December 2013 to be determined with the substantive appeal. 3. Liberty be granted to Mirvac Real Estate Pty Limited and Mrs Carolina Alvarenga to adduce such further evidence by way of affidavit if necessary that each may seek to rely on in respect to the notice of motion by Mirvac Real Estate Pty Limited seeking an extension of time for filing a notice of appeal. 4. The red appeal book be filed and served by 25 September 2013. 5. Glad Retail Cleaning Pty Limited and Mirvac Real Estate Pty Limited file and serve written submissions in support of their respective appeals by 1 October 2013. 6. Mrs Alvarenga to file and serve written submissions in opposition to both appeals by 30 October 2013. 7. The hearing of the appeals be listed for 11 December 2013 with an estimate of one day. 8. The matter be listed for directions before the Registrar on 6 November 2013. 9. Mirvac Real Estate Pty Limited pay the costs of Glad Retail Cleaning Pty Limited and Mrs Alvarenga in respect of its notice of motion filed 28 August 2013, such costs to be agreed or assessed. 10. Each party pay its own costs of the notice of motion filed by Glad Retail Cleaning Pty Limited on 11 September 2013. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - application by prospective appellant for an extension of time within which to file a notice of appeal - where appeal of other defendant already on foot - where plaintiff seeks to enforce whole judgment against prospective appellant as joint tortfeasor despite prospective appellant already having paid its share of judgment to plaintiff, rather than plaintiff enforcing judgment against other joint tortfeasor who appealed within time and who has not paid its share of judgment - where prospective appellant and appellant were both successful on respective cross-claims against each other for contribution - where plaintiff may have already lost workers compensation entitlement due to reception of prospective appellant's payment regardless of outcome of either appeal Legislation Cited: Workers Compensation Act 1987, s 151Z(1)(b) Category: Interlocutory applications Parties: Glad Retail Cleaning Pty Limited - appellant Carolina Alvarenga - first respondent Mirvac Real Estate Pty Limited - second respondent Representation: Counsel: D Priestley - appellant GJ Parker SC/J de Greenlaw - first respondent W S Reynolds - second respondent Solicitors: McCabes Lawyers - appellant Gerard Malouf & Partners - first respondent Thompson Cooper Lawyers - second respondent File Number(s): 2013/127719 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Citation: Unreported Date of Decision: 2013-03-28 00:00:00 Before: Elkaim DCJ File Number(s): DC 2010/353197