Kim v Angus Developments Pty Ltd [2017] NSWCA 193

Kim v Angus Developments Pty Ltd [2017] NSWCA 193

Although the Landowners' proposed appeal was reasonably arguable and had reasonable prospects of success, no sufficient grounds were shown for departing from the usual principle against granting leave to appeal from a separate question before final disposition. There would be no injustice because the Landowners could challenge the preliminary determination on an appeal as of right from final orders if necessary.

Jurisdiction
Australia
Judgment Date
03 August 2017
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Determination of a Separate Question in Equity Division Proceedings
Outcome
Leave to appeal refused with costs.
Legal Topics
['leave to Appeal' 'separate Question' 'condition Precedent' 'construction of Development Agreement' 'specific Performance' 'mediation Clause']
['civil Procedure' 'contract Law' 'equity'] ['leave to Appeal' 'separate Question' 'condition Precedent' 'construction of Development Agreement' 'specific Performance' 'mediation Clause']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Determination of a Separate Question in Equity Division Proceedings

Legal Issues

  1. 1 ["Whether leave to appeal should be granted under s 103 of the Supreme Court Act 1970 (NSW) from the primary judge's determination of a separate question." 'Whether sufficient grounds were shown for departing from the usual principle that appeals from separate questions should generally await final disposition of all issues.' 'Whether cll 8.3 and 8.4 of the Development Agreement were subject to a condition precedent that the Developer had obtained development consent.']

Ratio Decidendi

Although the Landowners' proposed appeal was reasonably arguable and had reasonable prospects of success, no sufficient grounds were shown for departing from the usual principle against granting leave to appeal from a separate question before final disposition. There would be no injustice because the Landowners could challenge the preliminary determination on an appeal as of right from final orders if necessary.

Court Disposition

Leave to appeal refused with costs.

Orders

  • ['The summons seeking leave to appeal be dismissed with costs.']