Ferguson v Fennamore [2015] NSWSC 1965

Supreme Court New South Wales

Medium Neutral Citation: Ferguson v Fennamore [2015] NSWSC 1965 Hearing dates: 17 December 2015 Decision date: 18 December 2015 Jurisdiction: Common Law Before: Adamson J Decision: 1. Subject to order (2), extend the time for filing the summons to 1 October 2015.

2. Exempt from the extension of time granted in order (1) above, ground 1 in the amended summons.

3. Refuse leave to appeal in respect of grounds 2, 3, 4 and 5 of the amended summons.

4. Confirm that leave to appeal is not required in respect of grounds 6 and 7 in the amended summons as they involve questions of law in respect of which the plaintiff has a right to appeal pursuant to s 39(1) of the Local Court Act 2007 (NSW).

5. Subject to either party making an application in writing to my Associate within 28 days for a different order, order the defendant to pay 50% of the plaintiff's costs of the leave application and the application for extension of time.

6. Grant liberty to the parties to approach my Associate to obtain a hearing date before me for the appeal, confined to grounds 6 and 7 in the amended summons. Catchwords: APPEAL – appeal from Local Court – judgment of Local Court based solely on figure in statement of claim – accepted to be unsupported by evidence and unexplained by reasons – extension of time for leave to appeal – relevant considerations - explanation for delay – prejudice occasioned by delay – no basis for conditional extension of time - leave to appeal - prospects of success - disproportionality between costs and amount in dispute – "just" resolution of proceedings weighs in favour of grant of leave in respect of specific grounds Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, ss 56, 57, 58, 59 Conveyancing Act 1919 (NSW), s 12 Local Court Act 2007 (NSW), ss 39, 40 Uniform Civil Procedure Rules 2005 (NSW), rr 50.3, 50.4, 50.12 Sale of Goods Act 1923 (NSW), s 26 Supreme Court Act 1970 (NSW), s 75A Cases Cited: Gallo v Dawson (1990) 93 ALR 479 Owners Strata Plan 4003 v Mustafa [2012] NSWSC 780 Category: Principal judgment Parties: Rebecca Ferguson (Plaintiff) Patricia Dianne Fennamore (Defendant) Representation: Counsel: M Mantaj (Solicitor) (Plaintiff) R Gration (Defendant)