Menzies v Paccar Financial Pty Ltd (No 2) [2014] NSWCA 2

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Menzies v Paccar Financial Pty Ltd (No 2) [2014] NSWCA 2 Hearing dates: 21/01/2014 Decision date: 21 January 2014 Before: Leeming JA Decision: 1. Dispense, to the extent necessary to do so (if any), with any further compliance with UCPR 51.24(1)(b) and (2). 2. Direct Mr and Mrs Menzies to file and serve any proposed amended notice of appeal by 5pm on Friday, 24 January 2014. 3. Direct Paccar to indicate as soon as possible, but in any event no later than Friday, 31 January 2014, whether it opposes any application by Mr and Mrs Menzies for leave to amend the notice of appeal. 4. Direct Mr and Mrs Menzies to file and serve submissions and any supplementary material on or before 4pm on Friday, 31 January 2014. 5. The directions made by me on 27 November 2013, varied by me by order 3 on 16 December 2013, as to the filing and service of Mr and Mrs Menzies' submissions, are varied accordingly. 6. Otherwise dismiss Mr and Mrs Menzies' notice of motion of 12 December 2013 as amended today and Paccar's notice of motion of 9 December 2013. 7. Liberty to apply on 48 hours' notice, by email to my Associate in the first instance. 8. Mr and Mrs Menzies to pay Paccar's costs of the motions of 12 and 9 December 2013. 9. Note that Paccar will file and serve copies of the red and black books (the black book including the transcripts of 13 and 14 May and 13 June 2013) on or before 29 January 2014. [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: PRACTICE AND PROCEDURE - interlocutory applications - application to vacate hearing date - alleged non-compliance by Registry with UCPR, r 51.24 - no material prejudice suffered - threatened application to amend - amendments not yet formulated - application to vacate opposed by respondent - application refused Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58 Uniform Civil Procedure Rules 2005 (NSW), r 51.24 Cases Cited: Bovaird v Frost [2013] NSWCA 91 Prynew Pty Ltd v Nemeth [2011] NSWCA 5 Category: Interlocutory applications Parties: Ian David Menzies (first appellant) Colleen Anne Menzies (second appellant) Paccar Financial Pty Ltd (respondent) Representation: Counsel: First appellant in person and on behalf of the second appellant P Newton (respondent) Solicitors: Mills Oakley Lawyers (respondent) File Number(s): 2013/153139 Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 772 Date of Decision: 2013-06-13 00:00:00 Before: Harrison AsJ File Number(s): 2010/377702; 2011/176144