SCOTT & Anor v McMAHON & 2 Ors [2001] NSWCA 481

SCOTT & Anor v McMAHON & 2 Ors [2001] NSWCA 481

The order for account did not finally dispose of Dr McMahon's claims but was an interlocutory step, made under Part 48 Rule 2, in aid of further determination of equitable compensation and related issues. Other orders also confirmed that the account was interlocutory. Because the appellants did not press leave to appeal, the appeal was incompetent and had to be dismissed, with costs from the date on which the competency issue and respondents' opposition were fairly on the table.

Jurisdiction
Australia
Judgment Date
23 November 2001
Procedural Posture
Appeal / Determination of Competency of Appeal From Equity Division Orders for Taking Accounts
Outcome
Appeal dismissed as incompetent.
Legal Topics
['competency of Appeal' 'final and Interlocutory Orders' 'order for Account' 'breach of Trust' 'standing of Beneficiary to Seek an Account' 'costs of Incompetent Appeal']
['practice and Procedure' 'equity' 'trusts' 'costs'] ['competency of Appeal' 'final and Interlocutory Orders' 'order for Account' 'breach of Trust' 'standing of Beneficiary to Seek an Account' 'costs of Incompetent Appeal']

Case Brief

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Procedural Posture

Appeal / Determination of Competency of Appeal From Equity Division Orders for Taking Accounts

Legal Issues

  1. 1 ['Whether the orders made by Windeyer J on 21 March 2001 were final orders such that the appeal was competent.' "Whether the order for account was intended to represent the final disposal of the plaintiff's claim." 'Whether the account was an interlocutory order made under Part 48 Rule 2 Supreme Court Rules.' 'What costs order should be made where the appeal was incompetent and the competency issue had been raised before the hearing.']

Ratio Decidendi

The order for account did not finally dispose of Dr McMahon's claims but was an interlocutory step, made under Part 48 Rule 2, in aid of further determination of equitable compensation and related issues. Other orders also confirmed that the account was interlocutory. Because the appellants did not press leave to appeal, the appeal was incompetent and had to be dismissed, with costs from the date on which the competency issue and respondents' opposition were fairly on the table.

Court Disposition

Appeal dismissed as incompetent.

Orders

  • ['The appeal is dismissed as incompetent.' "The appellants are to pay the respondents' costs from 6 November 2001."]