McClellan v Horswill [2020] NSWCA 30

McClellan v Horswill [2020] NSWCA 30

Leave to appeal was required and should be refused because, although it was arguable that the primary judge erred in refusing the adjournment, the applicant did not show an error going beyond what was merely arguable or that any such error caused injustice. The applicant had not shown a sufficiently arguable defence to the specific performance claim, particularly given the evidence that he signed the subdivision proposal, accepted that Ms Warren was trustee for sale and directed Mr Horswill to deal with her, and thereby either authorised or held her out as authorised to agree to the sale. The application raised no issue of principle or question of public importance.

Jurisdiction
Australia
Judgment Date
04 March 2020
Procedural Posture
Application for Leave to Appeal From Orders for Specific Performance of a Contract for Sale of Land / Court of Appeal Summons for Leave to Appeal
Outcome
Summons dismissed with costs.
Legal Topics
['leave to Appeal' 'adjournment' 'procedural Fairness' 'specific Performance' 'oral Contract for Sale of Land' 'part Performance' 'actual Authority' 'ostensible Authority']
['civil Procedure' 'equity' 'contracts' 'real Property'] ['leave to Appeal' 'adjournment' 'procedural Fairness' 'specific Performance' 'oral Contract for Sale of Land' 'part Performance' 'actual Authority' 'ostensible Authority']

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Procedural Posture

Application for Leave to Appeal From Orders for Specific Performance of a Contract for Sale of Land / Court of Appeal Summons for Leave to Appeal

Legal Issues

  1. 1 ['Whether leave to appeal was required under s 101(2)(r) of the Supreme Court Act 1970 (NSW).' 'Whether the primary judge erred in refusing an adjournment where the applicant did not attend and relied on psychiatric evidence.' 'Whether any adjournment error deprived the applicant of the possibility of successfully defending the specific performance claim.' 'Whether Ms Warren had actual or ostensible authority to enter into the agreement with the first and second respondents on behalf of the applicant.' 'Whether the application raised an issue of principle, question of public importance, or error going beyond what was merely arguable.']

Ratio Decidendi

Leave to appeal was required and should be refused because, although it was arguable that the primary judge erred in refusing the adjournment, the applicant did not show an error going beyond what was merely arguable or that any such error caused injustice. The applicant had not shown a sufficiently arguable defence to the specific performance claim, particularly given the evidence that he signed the subdivision proposal, accepted that Ms Warren was trustee for sale and directed Mr Horswill to deal with her, and thereby either authorised or held her out as authorised to agree to the sale. The application raised no issue of principle or question of public importance.

Court Disposition

Summons dismissed with costs.

Orders

  • ['Summons dismissed with costs.']