Johnston v McGrath [2007] NSWCA 231

Johnston v McGrath [2007] NSWCA 231

Time to file the summons for leave to appeal was extended because the delay arose from a mistake in process and caused no prejudice, but leave to appeal was refused. The primary judge's finding that the admitted misleading statements did not play any part, and were not a material contributing cause, in the claimant's decision to purchase HIH shares was a factual finding open on the evidence and no appellate error was shown. The case was not a test case, depended on its own facts, the additional evidence did not assist, and the small amount in issue weighed against granting leave.

Jurisdiction
Australia
Judgment Date
04 September 2007
Procedural Posture
Application for Leave to Appeal / Application for Leave to Appeal From Dismissal of Appeal Against Rejection of Proof of Debt in Liquidation; Application for Extension of Time
Outcome
Time to file summons for leave to appeal extended; leave to appeal refused with costs.
Legal Topics
['leave to Appeal' 'extension of Time' 'proof of Debt in Liquidation' 'misleading or Deceptive Conduct' 'causation' 'small Amount in Issue' 'additional Evidence']
['appeal' 'civil Procedure' 'corporations' 'trade Practices'] ['leave to Appeal' 'extension of Time' 'proof of Debt in Liquidation' 'misleading or Deceptive Conduct' 'causation' 'small Amount in Issue' 'additional Evidence']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Application for Leave to Appeal From Dismissal of Appeal Against Rejection of Proof of Debt in Liquidation; Application for Extension of Time

Legal Issues

  1. 1 ['Whether time for lodging the application for leave to appeal should be extended.' 'Whether the small amount involved and the fact that the proposed appeal was on a question of fact should lead to refusal of leave to appeal.' "Whether the primary judge erred in finding that misleading statements by HIH were not a material contributing cause of the claimant's loss." 'Whether additional evidence should be considered if leave to appeal were granted.' "Whether the claimant's case could properly be characterised as a test case."]

Ratio Decidendi

Time to file the summons for leave to appeal was extended because the delay arose from a mistake in process and caused no prejudice, but leave to appeal was refused. The primary judge's finding that the admitted misleading statements did not play any part, and were not a material contributing cause, in the claimant's decision to purchase HIH shares was a factual finding open on the evidence and no appellate error was shown. The case was not a test case, depended on its own facts, the additional evidence did not assist, and the small amount in issue weighed against granting leave.

Court Disposition

Time to file summons for leave to appeal extended; leave to appeal refused with costs.

Orders

  • ['Extend time to file summons for leave to appeal.' 'Leave to appeal refused with costs.']