Riva NSW Pty Ltd (ACN 113 881 815) v Mark A Fraser & Christopher P Clancy t/as Fraser Clancy Lawyers (ABN 27 526 211 743) [2014] NSWCA 454

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Riva NSW Pty Ltd (ACN 113 881 815) v Mark A Fraser & Christopher P Clancy t/as Fraser Clancy Lawyers (ABN 27 526 211 743) [2014] NSWCA 454 Hearing dates: 29/10/2014 Decision date: 29 October 2014 Before: Emmett JA Decision: (1) Summons filed on 16 September 2014 be dismissed with costs. (2) Notice of motion filed on 14 October 2014 be otherwise dismissed. (3) The respondents to the motion referred to in order (2) pay the applicant's costs of that motion. (4) The costs of the proceedings referred to in orders (1) and (3) be paid on an indemnity basis. [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 - summons seeking relief under s 69 of the Supreme Court Act from orders of the District Court - notice of motion seeking summary dismissal of the summons - summons filed out of time - whether there is any prospect of an extension of time being granted - whether there is any basis on which the relief sought in the summons would be granted in any event Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 District Court Act 1973 (NSW0, ss 4, 127 Legal Profession Act 2004 (NSW), ss 384, 385 Supreme Court Act 1970 (NSW), s 69 Trade Practices Act 1974 (Cth), s 82 Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.26, 7.2, 36.16, 51.45, 59.3 Cases Cited: Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 Category: Principal judgment Parties: Riva NSW Pty Ltd (ACN 113 881 815) (First Applicant) Angelo Ferella (Second Applicant) Tiziana Ferella (Third Applicant) Mark A Fraser & Christopher P Clancy t/as Fraser Clancy Lawyers (First Respondent) District Court of NSW (Second Respondent) Representation: Counsel: G Foster (Applicants) P Barham (Respondents) Solicitors: Zali Burrows Lawyers (from 29 October 2014) (Applicants) Fraser Clancy Lawyers (Respondents) File Number(s): 2014/273003 Publication restriction: Nil Decision under appeal Before: Curtis DCJ File Number(s): 2012/13479