Ferguson v Fennamore

The facts

1. In order to appreciate the issues that arise for determination it is necessary to set out, in summary form, the factual background to the proceedings in the Local Court.
2. On 26 January 2012 Daryn Post and Tania Kosky purchased the horse from Mark Vallander for $22,000. The horse was registered in the Australian Horse Stud Book on 29 June 2012. Its owners were said to be Daryn and Tania Post [Kosky]. In 2013 Ms Kosky purported to sell the horse to Ms Ferguson for $10,000. On about 15 April 2013, while Mr Post was absent from the property where the horse was located, Ms Kosky assisted in its transportation to the custody of Ms Ferguson. Subsequently, a written agreement dated 30 April 2013 was entered into between them (the Sale Agreement), cl 9 of which provided: "The vendor [Tania Kosky] warrants that the items listed in the schedule are the sole and absolute property of the vendor free of all encumbrances whether by way of pledge, charge, hire purchase, bill of sale, or other encumbrance."
3. In July 2014 Mr Post commenced proceedings in the Local Court to recover the horse and for damages associated with his being deprived of the horse for a period of just over two years.
4. Some time after the commencement of the Local Court proceedings, Mr Post became bankrupt. His trustee in bankruptcy, the Official Trustee, assigned Mr Post's rights to the proceedings and to the horse to Ms Fennamore, Mr Post's new de facto partner. A notice of assignment dated 11 December 2014 was given by the Official Trustee to Ms Ferguson pursuant to s 12 of the Conveyancing Act 1919 (NSW), paragraph 4 of which said: "The Trustee has assigned to PATRICIA DIANNE FENNAMORE of [address given] all rights, title and interests in the Horse, and any chose in action arising in respect of the Horse, the Sale Agreement, possession of the Horse, and any chose in action or claim referred to in the Statement of Claim filed in Local Court of NSW at Goulburn Proceedings no. 2014/00198078."

The Local Court Proceedings

1. The proceedings were heard in the Local Court on 17 April 2015. Ms Fennamore, for whom Mr McNamara appeared, relied on: 1. an affidavit of Mr Post dated 2 February 2015, who was cross-examined; 2. an affidavit of Ms Fennamore dated 9 February 2015, who was not cross-examined; and 3. certain paragraphs of an affidavit of Molly Post, Mr Post's daughter, dated 9 February 2015, which were tendered without the deponent's being required for cross-examination.
2. Ms Ferguson, for whom Ms Blackadder appeared, relied on her affidavit of 8 April 2015. She was cross-examined.
3. No evidence to support the monetary claim was adduced in Ms Fennamore's case in chief. The only evidence as to this part of the claim was the following evidence which was elicited from Mr Post in cross-examination by Ms Blackadder: "Q Mr Post it's the case, isn't it, that the stallion is a quite valuable breeding stallion, isn't it? . . . WITNESS: That's why I bought him, yeah. Q Yes. And you derive income from service fees from that stallion? A Yes. Q And forgive my ignorance, but for a Shire stallion what sort of service fee would you reasonably expect to attract per service? A $1500 plus other costs. Q Sure. And do you offer those breeding services currently, Mr Post, with the horses that you -- A I don't have the horse. Q With the horses that you currently have, not this stallion of course? A I admit -- Q Okay. And it's the case, isn't it, that when you're in a difficult financial position, isn't it, you'd be looking for ways to make income flow? A Obviously. Q Such as using a breeding stallion? A (No verbal reply) Q So this particular stallion would be quite a valuable asset to have in your possession, wouldn't he? A Yeah. Q So Mr Post I put to you that the only reason that you really want this stallion back at this particular point in time is because of your financial position and that's why you've commenced these proceedings against Ms Ferguson, was to try and alleviate a financial position that you currently find yourself in, not because of the purported joint ownership issue and the fact that way back when the horse was first removed that you took issue with it? A I take offence to being - having something taken out of my backyard in the middle of the night-- Q That wasn't the question Mr Post, but I appreciate that. A That's why I'm pursuing it. I bought the horse. I didn't sell it; it was taken in the middle of the night. That's just dead wrong. Q But you would agree, wouldn't you, that when you're in a dire financial situation it would be a particular valuable thing to have, wouldn't it? A (No verbal reply) Q It might assist to recover some financial ground? A It eats and need to be fenced, bathed, vetted. Q But still, you would expect to derive an income? A It's just as much cost as what it is asset. Q You would expect to derive an income from that horse? A No, no necessarily. I didn't particularly want to use him on outside mares; I had four mares of my own to use. Q But isn't it the case Mr Post, that part of this claim is for the loss of income in relation to service fees? A Yeah. Q Well it must be the case, mustn't it, that that is part of the -- A Yeah, you'd serve - you'd serve a few outside mares, yeah. Q It's not purely a claim for part of the purchase price, is it? A No.
4. Ms Kosky did not give any evidence in the Local Court proceedings.

The Decision

1. Her Honour reserved her decision and stood the matter over to 6 July 2015 for judgment. Her Honour made the factual findings set out below.

Relevant factual findings

1. The de facto relationship between Mr Post and Ms Kosky broke down in April 2013 after seven years. They had owned several horses jointly in the course of their relationship, including the horse the subject of the proceedings. The horse was regularly entered in Shire Shows, most recently in March 2013 at Goulburn. Ms Kosky befriended Ms Ferguson and confided in her that she was leaving Mr Post. Ms Ferguson acknowledged that she appreciated that the price at which Ms Kosky offered to sell the horse to her, $10,000, was below its market value.
2. In April 2013 Ms Kosky applied for an Apprehended Violence Order against Mr Post which led to his arrest. He was taken to the police station to make a statement. While he was absent, the horse was removed from the Property. Subsequently Ms Kosky and Ms Ferguson signed the Sale Agreement.
3. In September 2013 Mr Post, who was unaware of the Sale Agreement, discovered that the horse was on Ms Ferguson's property and went there to retrieve the horse. Ms Ferguson called police, who charged Mr Post with trespass. He sought the assistance of police, who informed him that it was not a police matter. Mr Post was not aware of Ms Kosky's whereabouts for a couple of years.
4. Final orders were made in the Family Court in December 2013. The horse was not part of the settlement.

Legal reasons for the Decision

1. Of present relevance, her Honour found: 1. Mr Post was a joint owner of the horse with Ms Kosky and had not authorised Ms Kosky to sell the horse to Ms Ferguson; 2. Ms Ferguson did not exercise due diligence concerning the title to the horse as she did not make any enquiries before she purchased it, even though she appreciated that she was buying it for less than its market value; 3. the effect of s 26 of the Sale of Goods Act 1923 (NSW) was that Ms Kosky had no authority to sell the horse and therefore could not give Ms Ferguson good title to it; and 4. Ms Fennamore was, accordingly, entitled to return of the horse, no exception to the nemo dat quod non habet principle enshrined in s 26 (the nemo dat principle) having been made out.
2. Her Honour proceeded to make the orders set out above. Her Honour did not refer to any evidence in relation to the amounts claimed.
3. It was accepted by Mr Gration that no reasons had been given for the order for the monetary sum; that there was no evidence before the Local Court which would warrant judgment in that sum; and that the only evidence on the question of loss was that of Mr Post set out above. It was common ground that the provenance of the judgment sum was the statement of claim in the Local Court.

The relevant statutory provisions and rules

1. The Local Court Act relevantly provides for appeals as of right to this Court on a question of law (s 39(1) of the Local Court Act) and with leave of this Court on a ground that involves a question of mixed law and fact (s 40(1) of the Local Court Act).
2. UCPR 50.3 provides that a summons commencing an appeal must be filed within 28 days after the material date, being the date on which the decision of the court is given. UCPR 50.4 provides that a summons seeking leave to appeal must be filed within 28 days after the material date.
3. Section 26(1) of the Sale of Goods Act provides: "26 Sale by person not the owner (1) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by the owner's conduct precluded from denying the seller's authority to sell."
4. Part 6 of the Civil Procedure Act 2005 (NSW) (the Act) applies. The overriding purpose of the Act and the rules is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56. The court is obliged to seek to act in accordance with the dictates of justice: s 58. The practice and procedure of the court is to be implemented with the object of eliminating delay: s 59.

The application for an extension of time and the application for leave

The characterisation of grounds as involving questions of law or mixed questions of law and fact

1. It was accepted by Mr Mantaj (of Conditsis Lawyers), who appeared on behalf of Ms Ferguson (in this Court but not the Court below), that leave was not required for grounds 1, 6 and 7 of the amended summons as these matters raised questions solely of law. I am satisfied that this is the correct characterisation of these grounds. Accordingly, in respect of those grounds, no leave is required. However, an extension of time is required because the summons was filed out of time.
2. Mr Gration submitted that leave was required in respect of grounds 2, 3, 4 and 5 since they involved questions of fact, or mixed questions of law and fact. Mr Mantaj submitted that they involved questions of law as there was no relevant factual question outstanding. I am satisfied that grounds 2, 3, 4 and 5 involve questions of mixed law and fact, in respect of which leave to appeal is required. Her Honour's finding that Ms Kosky did not have authority to sell the horse on behalf of herself and Mr Post involved a question of fact, as did the finding that Ms Ferguson had not made enquiries about the title to the horse or exercised due diligence. These findings underpinned her Honour's application of the nemo dat principle in s 26.

The length of the delay and any explanation for the delay

1. What occurred between the material date (6 July 2015) and the filing of the summons on 1 October 2015 was established by the evidence adduced in this Court as follows.
2. As referred to above, the Decision was delivered on 6 July 2015. On that day, Ms Blackadder told Mr McNamara that her client (Ms Ferguson) intended to appeal the Decision. On 7 July 2015 Ms Fennamore's solicitor wrote to Ms Ferguson's solicitors demanding payment of the monetary aspect of the Decision (the Judgment). A response was received to the effect that they were no longer instructed on her behalf. Thereafter Ms Fennamore's solicitors demanded payment of the Judgment from Ms Ferguson, but received no response from her.
3. On 7 July 2015 Ms Ferguson collected the horse from agistment and made arrangements for it to be collected by Ms Fennamore and Mr Post on 8 July 2015.
4. On 9 July 2015 Ms Ferguson instructed her former counsel, Ms Blackadder, to provide information to Dominic Cook, who was to be her new legal adviser. I infer from the prefix to the landline phone number for Mr Cook "03" that Mr Cook was not based in New South Wales. On 13 July 2013 Debra Bentley, a friend of Ms Ferguson, provided information on the proceedings to Mr Cook. By 22 July 2015 Ms Ferguson had decided, on the basis of Mr Cook's advice, to appeal. Later that day, Ms Blackadder informed Ms Ferguson that she did not know Mr Cook but that if Ms Ferguson had decided to brief him "that's fine".
5. However, at about this time, Ms Ferguson learned from Mr Cook that he was unable to practise in New South Wales and that Emma Mason, who had also been mooted as a potential legal representative, did not have a current practising certificate. Ms Mason referred Ms Ferguson to Conditsis Lawyers, Ms Ferguson's present solicitors.
6. On 24 July 2015, Ms Kosky, on behalf of Ms Ferguson, forwarded information to the enquiry email of Conditsis Lawyers. On 27 July 2015, Ms Kosky informed Conditsis Lawyers that she was paying the costs of the appeal. Conditsis Lawyers advised Ms Ferguson that she had 28 days from the date of judgment to file the appeal, which meant that she had to file a summons by 3 August 2015.
7. By email dated 28 July 2015 Conditsis Lawyers requested $5,000 on trust for advice in relation to the appeal in, relevantly, the following terms: "I confirm our advice that this is a complex matter and given the short time frame, an appeal may be filed out of time in which case we will request an extension; however, before proceeding further we request the sum of $5,000 be deposited into our trust account . . ."
8. On 30 July 2015 Conditsis Lawyers advised Ms Ferguson as follows: "I am not sure if you are aware, but Tania [Kosky] said she would pay your costs in relation to the appeal. . . . We are not looking at the matter until she makes the payments. We will also need her to enter into a costs agreement."
9. On 30 July 2015 Ms Ferguson borrowed $5,000 from a friend, Joseph Fitzgerald, and deposited the sum in her solicitors' trust account. On 3 August 2015, Mr Mantaj gave preliminary advice to Ms Ferguson on the appeal. At that stage no transcript was available and, accordingly, no authorised record of the reasons for Decision was to hand.
10. On 5 August 2015 a costs agreement was sent to Ms Kosky. The transcript of the evidence and the Decision was received by Conditsis Lawyers on 18 August 2015. However, the exhibits (which largely comprised the affidavit evidence referred to above) were not provided on that date. The transcript did not include a record of the parties' submissions.
11. On 13 August 2015 Ms Fennamore obtained a Writ for Levy of Property from the Local Court to enforce the Judgment.
12. On 26 August 2015 Conditsis Lawyers sent an amended fixed costs agreement to Ms Kosky, which was signed on 31 August 2015 and returned on 3 September 2015.
13. On 10 September 2015 the Sheriff of the Local Court went to Ms Ferguson's property pursuant to the writ but was unable to gain entry. He left a card, to which he received no response.
14. On 11 September 2015 Conditsis Lawyers provided written advice to Ms Ferguson on the proposed appeal.
15. On 23 September 2015, Ms Fennamore's solicitors served Conditsis Lawyers with an examination notice addressed to Ms Ferguson. Conditsis Lawyers informed them that they did not have instructions to accept service of the examination notice. Ms Fennamore tried to serve Ms Ferguson personally when she saw her at the Local Court when she applied for a lump sum costs order, but was not successful.
16. The summons was filed on 1 October 2015, approximately eight weeks after the time provided by the UCPR. It was served on 2 October 2015.

Matters following the filing of the summons on 1 October 2015

1. On 9 October 2015 Ms Ferguson applied for a stay of the Judgment. On 4 November 2015, at the return date of Ms Ferguson's application, Mr Mantaj applied for the motion to be adjourned as Ms Ferguson was unwell. The application was adjourned to 18 November 2015 and Ms Ferguson was ordered to pay the costs thrown away on or before the adjourned date.
2. At some time after 16 October 2015, Conditsis Lawyers received the transcript of the submissions made by the parties in the Local Court.
3. On 9 December 2015 orders were made by consent staying enforcement of the Judgment pending determination of the proceedings in this Court. Ms Fennamore agreed to the stay on the basis that Ms Ferguson granted a charge over her property at Tallong to secure the payment of the Judgment.

The financial position of Ms Ferguson

1. One of the bases on which Ms Fennamore resisted an extension of time and leave to appeal was that the proceedings were being funded by a third party (Ms Kosky). In these circumstances, it is necessary to summarise the evidence (such as it is) as to Ms Ferguson's financial position.
2. In June 2015 Ms Ferguson purchased a property at Tallong for $365,000. She is the sole registered proprietor of that property. As at 1 October 2015 there was no mortgage registered on the title to that property and no caveat had been lodged. There are six horses on the property, each of which had once been owned by Ms Ferguson and each of which was sold by her to raise cash.
3. From the time of Ms Ferguson's separation from her husband in about 2011 until she moved to the Tallong property, Ms Ferguson had continued to reside at a property at Wilton which they had owned jointly. The property was sold in October 2015 for $1.6m. She did not receive any of the proceeds of the sale of that property. She purchased the Tallong property with monies she had inherited from her maternal grandmother, by whom she had been raised.
4. Ms Ferguson is not employed and is currently in receipt of disability support pension. She has no savings. As at 13 November 2015 Ms Ferguson still owed Mr Fitzgerald the $5,000 he had lent her to pay into the trust account of Conditsis Lawyers for the purposes of obtaining advice whether to appeal.

Consideration: extension of time

1. The matters to be taken into account in deciding whether to extend time are well established by the authorities to which the parties referred, including Gallo v Dawson (1990) 93 ALR 479 per McHugh J. It is also necessary to take into account the matters referred to in ss 56, 57, 58 and 59 of the Act. As an extension of time is an order of a "procedural nature" within the meaning of s 58(1)(iii), it is necessary for me to seek to act in accordance with the interests of justice. For that purpose I am required to take into account the matters in ss 56 and 57 and may take into account the matters in s 58(2)(b).

Explanation for the delay

1. I am satisfied that Ms Ferguson has satisfactorily explained the delay in filing the summons. The period between 6 July 2015 and when she first instructed Conditsis Lawyers was, effectively, lost time. She had apparently lost faith in her original legal representation and wanted a second opinion. It does not appear that she appreciated, at least at first, that neither Mr Cook, nor Ms Mason held a practising certificate in New South Wales and that each was, accordingly, unable to give legal advice or act on her behalf on the appeal.
2. Although Conditsis Lawyers were instructed shortly before the summons was required to be lodged, it was, in my view, reasonable for them to wait until they had a satisfactory costs agreement in place, before providing advice. Moreover, they were understandably reticent about filing a summons without having a proper basis to articulate relevant grounds. They appreciated that once a summons was filed Ms Ferguson would be exposed to an adverse costs order if they subsequently decided (once they had had an opportunity to consider the transcript of evidence and reasons, which was not available until 18 August 2015) that there were no arguable grounds.
3. I reject Mr Gration's submission that Ms Ferguson and her solicitor adopted a cavalier approach to the time limit of 28 days prescribed by the UCPR. Conditsis Lawyers were alive to the time limit and reminded Ms Ferguson of it. However, they were not prepared to file a summons until they had considered the matter, with the benefit of transcript, and until they had a costs agreement which was sufficient to ensure that, if a summons was filed, the proceedings (including any remitter in the Local Court) could be prosecuted to conclusion.
4. I accept Mr Mantaj's submission that this Court ought not, by too readily refusing extensions of time, encourage the institution of half-baked appeals, filed in order to preserve a position before arguable grounds are identified, or before the putative appellant is in a position to fund the appeal.

Prejudice occasioned by the delay

1. Mr Gration identified the prejudice that Ms Fennamore had suffered as a result of the delay by reference to the steps that she had taken to enforce the Judgment after 6 July 2015. As Ms Fennamore was aware, from the day on which the Decision had been delivered, that Ms Ferguson intended to appeal, I do not consider that I should take into account any enforcement action taken in the 28 days from the material date. However, the enforcement action taken thereafter, up until the date of filing the summons, is material. Ms Fennamore obtained a Writ for Levy of the Property and had the Sheriff seek to enforce it. She also served examination notices which were not complied with. These matters amount to prejudice to Ms Fennamore and weigh against an extension of time.

The interests of justice: the prospects of success on appeal

1. The interests of justice (which are relevant, for the reasons given above, to whether time should be extended) include the prospects of appeal. This matter is also relevant to whether leave should be granted.

Ground 1

1. With respect to ground 1, it does not appear that the ground leads anywhere and appears to be a generalised complaint about the Court below. Indeed, Mr Mantaj in his written submissions said, of this ground: "In fairness to her Honour it must be conceded that neither party appears to have assisted her by drawing her Honour's omission to her attention. Further, the Appellant does not contend that the failure to make a determination on the admissibility of the affidavit of Mr Post as of any great moment in the determination of the matter."
2. Mr Mantaj, in oral submissions, confirmed that ground 1 was pressed, albeit not particularly strongly. I do not regard the prospects of this ground as greater than minimal. An appeal to this Court is not an opportunity to make gratuitous criticisms of busy Local Court Magistrates for overlooking matters of no moment.

Grounds 2, 3 and 4

1. As to grounds 2, 3 and 4, which concern the application of the nemo dat principle, I do not consider the prospects of success on appeal to be particularly high. Mr Mantaj informed me that he had been unable to find an authority which turned on one of two joint proprietors purporting to sell the whole of the jointly owned property. He submitted that, in these circumstances, it would be of benefit to have this Court set out the relevant principles.
2. Although there may be a dearth of authority specifically on that point, I do not regard that, of itself, as a reason to assess the prospects on appeal as high, or even moderate. It seems to me to be tolerably clear that the Court below found that Ms Kosky did not have authority to sell the whole horse and did not purport to sell her undivided half share in the horse. In these circumstances, s 26 applied because Ms Kosky was not, relevantly, the owner of the horse: she was merely the owner of an undivided aliquot share in the horse. Her Honour's finding that Ms Kosky did not have the consent or authority of Mr Post to sell the horse would appear to be uncontroversial.
3. Mr Mantaj submitted that it is arguable that the effect of the nemo dat principle in the present case is that Ms Kosky transferred her interest in the horse to Ms Ferguson since that is the only interest in the horse that she had. In my view this submission is barely arguable, if at all, in light of the express terms of the Sale Agreement, and in particular cl 9. What Ms Kosky purported, and promised, to transfer was the whole horse, not her undivided aliquot share in the horse.

Ground 5

1. As to ground 5, I do not understand the basis of the ground, which is, in any event, an alternative ground. Ms Fennamore acquired the interest which Mr Post had in the horse. His interest passed to the Official Trustee by operation of law when he became bankrupt. The Official Trustee was entitled to assign such interest to Ms Fennamore. As notice under s 12 of the Conveyancing Act was given, the assignment of the interest was complete at law. The outstanding question, which does not arise for present purposes, is the interest of Ms Kosky in the horse. If she did not, as her Honour found, validly dispose of it, then she retained it. However, as she is not party to the proceedings, it is not necessary to consider her interest further. I do not consider it to have been open to her Honour to find that Ms Ferguson acquired Ms Kosky's undivided share in the horse, since a transaction on those terms would have been entirely inconsistent with cl 9 of the Sale Agreement. I do not, accordingly, regard the prospects of success of ground 5 as high.

Grounds 6 and 7

1. Mr Gration conceded that he could identify neither any evidence that would support the Judgment, nor any reasons in the Decision for the Judgment. Mr Gration said, fairly: "I wouldn't want to waste your Honour's time by saying I could make any reasonable submissions that that was a figure that could be arrived at on the evidence that was before the magistrate. I just can't make that submission to your Honour."
2. In these circumstances, the prospects of success of grounds 6 and 7 must be regarded as reasonably strong.
3. I note, however, that when I proposed that the hearing be converted to a concurrent hearing of the application for an extension of time, the application for leave and the appeal, it was resisted, presumably on the basis that the parties required time to prepare for a substantive appeal.

The disproportionality between the costs and the amount in dispute

1. Mr Gration submitted that there was a strong policy reason for refusing an extension of time for a small claim such as the present where there is the potential for costs to exceed the amount in issue. Mr Mantaj submitted that, although the amount in issue may not be substantial, the Judgment was a travesty of justice since it was supported neither by evidence nor reasons.
2. In some respects the costs have, in large part, been incurred. Mr Gration submitted that, if time was extended and the appeal proceeded, and the appeal was allowed, the matter would have to be remitted to the Local Court. Mr Gration submitted that the Local Court proceedings were "untidy". He contended that, upon remitter, Ms Fennamore could "get her house in order" and adduce evidence of actual loss.
3. I am not persuaded that the course Mr Gration proposed would properly be open even if the appeal were allowed. The error of which Ms Ferguson complains in grounds 6 and 7 was that the Judgment was ordered although Ms Fennamore had not established any loss arising from the dispossession of the horse for the period between April 2013 when it was taken out of Mr Post's possession and 8 July 2015 when it was restored to her, as his successor in title (by reason of the assignment from the Official Trustee).
4. It may be open to this Court, on the appeal, to make the order which the Local Court (in that event) ought to have made, in accordance with the approach taken by Beech-Jones J in Owners Strata Plan 4003 v Mustafa [2012] NSWSC 780 at [12]-[17], having regard to ss 39 of the Local Court Act and 75A of the Supreme Court Act 1970 (NSW). This is, however, a matter for consideration and determination on the appeal and does not presently arise, except in so far as it was necessary to address Mr Gration's submission.

Whether an extension of time ought be conditional

1. It was suggested that it ought be a condition of the extension of time that Ms Ferguson extend the charge granted over her property at Tallong with respect to the Judgment (which was the price of Ms Fennamore's consent to the stay of enforcement of the Judgment), so that it covers the costs of the proceedings. Mr Gration proposed, in the alternative, that she be required to pay the Judgment sum into Court.
2. I am not persuaded that either condition ought be imposed. Ms Fennamore's position with respect to the Judgment is protected by the charge. The evidence referred to above established Ms Ferguson to be a woman of property. However, the evidence also established that she had neither cash nor income to pay the Judgment or any substantial costs order unless she sold her home. Having regard to the matters set out above, I do not discern any proper basis to impose any of the conditions sought by Ms Fennamore on an extension of time.

Conclusion with respect to extension of time for grounds 6 and 7

1. The overriding purpose of the Act, is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56(1) of the Act. The aims of maximising speed and minimising cost are difficult to achieve in proceedings of this nature because of the amount in issue; the relative complexity of the questions raised; and the quantum of legal costs, which tend to be disproportionate to the amounts claimed. However, the "just" component of the overriding purpose provides a weighty consideration in favour of an extension of time in relation to grounds 6 and 7. I do not regard the factors against an extension of time (including the prejudice to Ms Fennamore in having embarked on futile enforcement action) as sufficient to outweigh the potential injustice to Ms Ferguson that the Judgment was ordered, notwithstanding that it is common ground on the present application there was no evidence to support it and no reasons given in respect of it.

Conclusion with respect to extension of time for ground 1

1. I am not disposed to extend time for ground 1, since the Magistrate's omission to make a ruling on some parts of Mr Post's affidavit does not seem to have given rise to any, or any significant, consequence.

Consideration of an extension of time and leave with respect to grounds 2, 3, 4 and 5

1. As for grounds 2-5, I am persuaded that it is appropriate to extend time in respect of them, but I refuse leave on the basis, for the reasons given above, that I do not regard the prospects of success to be sufficiently high to warrant a grant of leave. Furthermore, even if leave were granted and the appeal allowed, the best Ms Ferguson could hope for would be that she would own an undivided share in a horse, with the other undivided share being owned by her former de facto's present partner (Ms Fennamore). The disproportionality of cost and gain is wholly against a grant of leave, even if there were arguable prospects of appeal.

Costs

1. The parties asked me to reserve the question of costs. However, in the interests of minimising costs, I propose to indicate the costs order I would make, if no other order is sought. Ms Ferguson was required to make the application in order to obtain an extension of time for grounds 6 and 7. She has obtained such an extension. No leave is required in respect of these grounds. Ms Ferguson has, however, been unsuccessful in respect of the other grounds. In these circumstances, I consider that Ms Fennamore should be obliged to pay 50% of Ms Ferguson's costs of this application (for an extension of time and for leave to appeal). As I have noted, I have not yet heard the parties on costs and will, accordingly, provide an opportunity for the parties to apply for a different order.

The further conduct of the proceedings

1. As I have obtained a familiarity with the material germane to the appeal and heard some argument on the prospects of success of grounds 6 and 7, it is appropriate, for reasons of efficient case management, that the appeal be listed before me. In these circumstances, the orders make provision for such an allocation with a view to limiting the time and cost of such an appeal.

Orders

1. I make the following orders: 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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2015