Combe v Ziade [2002] NSWCA 309

Combe v Ziade [2002] NSWCA 309

The motion was dismissed because the claimant had delayed almost a year before seeking to exercise appeal rights and, for numerous reasons, had no realistic prospects of obtaining leave to appeal from Gibson DCJ's judgment and no prospects of obtaining leave to appeal from Hosking DCJ's judgment. The proposed appeal faced insuperable difficulties including absence of a pleaded payment defence, lack of evidence of quantifiable loss, adverse credibility findings, and strict limits on fresh evidence.

Jurisdiction
Australia
Judgment Date
09 September 2002
Procedural Posture
Application for Extension of Time for Seeking Leave to Appeal / Notice of Motion Before the NSW Court of Appeal
Outcome
Motion dismissed. Claimant to pay the opponent's costs.
Legal Topics
['leave to Appeal Out of Time' 'fresh Evidence on Appeal' 'credibility Findings on Appeal' 'solicitor Client Costs' 'res Judicata and Issue Estoppel']
['civil Procedure' 'appeals' 'professional Negligence' 'costs'] ['leave to Appeal Out of Time' 'fresh Evidence on Appeal' 'credibility Findings on Appeal' 'solicitor Client Costs' 'res Judicata and Issue Estoppel']

Case Brief

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Procedural Posture

Application for Extension of Time for Seeking Leave to Appeal / Notice of Motion Before the NSW Court of Appeal

Legal Issues

  1. 1 ['Whether the claimant should be granted an extension of time to seek leave to appeal from judgments of Hosking DCJ and Gibson DCJ.' 'Whether the claimant had realistic prospects of obtaining leave to appeal from the District Court judgments.' 'Whether proposed fresh evidence could be admitted on appeal.' 'Whether findings based on credibility of conflicting oral evidence could realistically be disturbed on appeal.']

Ratio Decidendi

The motion was dismissed because the claimant had delayed almost a year before seeking to exercise appeal rights and, for numerous reasons, had no realistic prospects of obtaining leave to appeal from Gibson DCJ's judgment and no prospects of obtaining leave to appeal from Hosking DCJ's judgment. The proposed appeal faced insuperable difficulties including absence of a pleaded payment defence, lack of evidence of quantifiable loss, adverse credibility findings, and strict limits on fresh evidence.

Court Disposition

Motion dismissed. Claimant to pay the opponent's costs.

Orders

  • ['Motion dismissed.' "Claimant to pay the opponent's costs."]