McEvoy v Wagglens Pty Ltd [2020] NSWSC 575

Supreme Court New South Wales

Medium Neutral Citation: McEvoy v Wagglens Pty Ltd [2020] NSWSC 575 Hearing dates: 23 July 2019 Decision date: 15 May 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) Grant leave to extend the time within which the plaintiff may file an appeal from the decision of the magistrate of 4 December 2018, so the plaintiff's application filed on 11 February 2019 is deemed to be filed in time;

(2) Refuse leave to appeal the order made in the Local Court at Hornsby on 4 December 2018 dismissing the plaintiff's notice of motion;

(3) Plaintiff to pay the defendants' costs. Catchwords: APPEALS – appeal from Local Court to Supreme Court – extension of time to appeal – evidentiary basis for delay in filing summons – fairly arguable case – extension of time granted – summons deemed to be filed in time

APPEALS – appeal from Local Court to Supreme Court – leave to appeal interlocutory judgment – magistrate did not consider all relevant principles and submissions – whether matter should be remitted to Local Court – no injustice going beyond what is merely arguable – leave to appeal refused where order for new trial would be futile Legislation Cited: Conveyancing Act 1919 (NSW), ss 7, 36C Fair Work Act 2009 (Cth), s 550 Limitation Act 1969 (NSW), ss 14, 16 Local Court Act 2007 (NSW), s 40 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 36.15, 36.16, 50.3 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20 Empire Shipping v Owners of the Ship "Shin Kobe Maru" (1991) 32 FCR 78; [1991] FCA 641 Gibson v Drumm [2016] NSWCA 206 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jingalong Pty Ltd v Todd [2014] NSWCA 330 New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Category: Principal judgment Parties: Fentin McEvoy (Plaintiff) Wagglens Pty Ltd (First Defendant) Roderick Cloonen Marr (Second Defendant) Representation: Counsel: In person (Plaintiff) S Balafoutis (Defendants)