JAKO INDUSTRIES PTY LTD -v- PERKINS (WA) PTY LTD [2026] WASCA 85

[2026] WASCA 85 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JAKO INDUSTRIES PTY LTD -v- PERKINS (WA) PTY LTD [2026] WASCA 85 CORAM : MITCHELL JA ARCHER JA HEARD : ON THE PAPERS DELIVERED : 17 JUNE 2026 FILE NO/S : CACV 38 of 2026 BETWEEN : JAKO INDUSTRIES PTY LTD Appellant AND PERKINS (WA) PTY LTD Respondent ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : FORRESTER J Citation : JAKO INDUSTRIES PTY LTD -v- PERKINS (WA) PTY LTD [2026] WASC 158 File Number : CIV 1334 of 2024 Catchwords: Appeal - Practice and procedure - Where appeal notice filed within the required -- 1 of 5 -- [2026] WASCA 85 Page 2 time but, through oversight, not served until the day after the time for appealing had expired - Whether an extension of time of one day should be granted - Turns on own facts Legislation: Supreme Court (Court of Appeal) Rules 2005 (WA), r 26, r 27 Result: Extension of time granted Category: B Representation: Counsel: Appellant : No appearance Respondent : No appearance Solicitors: Appellant : Bennett Respondent : HWL Ebsworth Lawyers Case(s) referred to in decision(s): Bagshaw v RTS Super Pty Ltd [2019] WASCA 85 Clack v Murray [2017] WASCA 88 Ireland v Commonwealth Development Bank of Australia (Unreported Full Court; 21 April 1993, Lib No 930244) Simonsen v Legge [2010] WASCA 238 -- 2 of 5 -- [2026] WASCA 85 JUDGMENT OF THE COURT Page 3 JUDGMENT OF THE COURT: 1 This appeal is against orders made by the primary judge on 30 April 2026 in a commercial dispute between the parties. Under r 26(2) of the Supreme Court (Court of Appeal) Rules (Rules), the appeal was required to be commenced within 21 days after the date of the decision being appealed. The appeal was therefore required to be commenced by 21 May 2026. 2 On 13 May 2026, the solicitors for the respondent indicated that they would accept service of any appeal notice on behalf of the respondent. The appellant filed the appeal notice on 15 May 2026. However, due to an oversight by one of the appellant's solicitors, the appeal notice was not served on the respondent. 3 On the evening of 21 May 2026, the respondent's solicitors advised an officer of the respondent that an appeal notice appeared to have been filed but had not been served. 4 On 22 May 2026, the respondent's solicitors sent an email to the appellant's solicitors noting that the time for commencing any appeal proceedings had expired the previous day. The email asked the appellant's solicitors to 'confirm the status of any appeal, including whether your client intends to proceed'. The appeal notice was served on the respondent's solicitors later on 22 May 2026. 5 Rule 27 of the Rules relevantly provides that an appeal is not commenced until an appeal notice is filed and served on the respondent. The present appeal was therefore not commenced until 22 May 2026, when the appeal notice was served on the respondent. The appellant therefore requires a one-day extension of the time in which to appeal. 6 The appellant applied for this extension of time on 3 June 2026, after the respondent declined to consent to the extension. This application was ordered to be dealt with on the papers. 7 The principles governing the exercise of the court's discretion to grant or refuse an extension of time to appeal are well established and need not be restated here.1 8 The respondent contends that, if the extension of time is granted, the respondent will suffer prejudice because it will lose the finality of 1 See Simonsen v Legge [2010] WASCA 238 [8]. -- 3 of 5 -- [2026] WASCA 85 JUDGMENT OF THE COURT Page 4 the judgment with which it is satisfied in a long-running dispute. However, given the court's broad power to extend time within which to commence an appeal, and given that the respondent was aware on 21 May 2026 that the appeal notice had been filed, we do not accept that the respondent has suffered any meaningful prejudice in this regard. 9 It is in the interests of justice to grant the one-day extension of time in which to appeal to 22 May 2026. The delay was very short. The delay was not the fault of the appellant, but rather was the result of the oversight of one of its solicitors. The respondent has not deposed to suffering any prejudice because of the delay in serving the notice of appeal. As we have noted, the respondent was aware on 21 May 2026 that the appeal notice had been filed. That is significant, given that the purpose of requiring personal service is to give notice of the proceedings so that the respondent may have an opportunity to resist the relief claimed in the proceedings.2 Presumably through its solicitors accessing the eCourts portal, the respondent had notice of the appeal before the expiry of the time for appealing. It could have filed a notice of respondent's intention and resisted the relief claimed in the appeal at that time. The respondent was also aware that the appeal was being pursued when it was served with the appeal notice on 22 May 2026. The extension of time was sought promptly after the appellant's solicitors appropriately sought the respondent's consent to the extension. The respondent does not suggest that the prospects of the appeal succeeding are so low as to make the grant of an extension of time futile. 10 The respondent relies on an old decision of the Full Court of this court in Ireland v Commonwealth Development Bank of Australia.3 The circumstances of that case were quite different from the present. The appeal notice in that case was served about 4 weeks after time expired, there was no explanation for the delay, the appellant in that case took no steps in the appeal for a lengthy time, and an extension application was not made until the respondent in that case applied to dismiss the appeal for want of prosecution. 11 In the present case, the interests of justice plainly warrant the grant of an extension of time. The respondent should have consented to the 2 See Clack v Murray [2017] WASCA 88 [10], approved in Bagshaw v RTS Super Pty Ltd [2019] WASCA 85 [19]. 3 Ireland v Commonwealth Development Bank of Australia (Unreported Full Court; 21 April 1993, Lib No 930244). -- 4 of 5 -- [2026] WASCA 85 JUDGMENT OF THE COURT Page 5 extension application. It should not have been necessary for the resources of the parties and the court to have been wasted by having to make, respond to and deal with the present application. 12 In these circumstances, while the need for an extension was a result of the appellant's failure to comply with the Rules, it is not appropriate to require the appellant to pay the respondent's costs of the application. The costs order sought by the appellant, for costs to be in the cause of the appeal, should be made. 13 We therefore order that: 1. The time for the appellant to commence this appeal is extended to 22 May 2026. 2. The costs of the appellant's application in an appeal filed on 3 June 2026 be in the cause of the appeal. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LK Associate to the Hon Justice Mitchell 17 JUNE 2026 -- 5 of 5 --