Siewert v Aquatic Air Pty Ltd [2014] NSWCA 384

Siewert v Aquatic Air Pty Ltd [2014] NSWCA 384

Leave to appeal was refused because the Siewerts failed to identify any error of principle, material factual error, irrelevant consideration, failure to consider a relevant matter, or unreasonable or unjust result in Brereton J's discretionary interlocutory decision. No basis for leave was established and no injustice would be suffered, particularly as further application to the primary judge remained open if circumstances had changed.

Jurisdiction
Australia
Judgment Date
28 October 2014
Procedural Posture
Application for Leave to Appeal From Interlocutory Orders / Court of Appeal Application for Leave to Appeal
Outcome
Application for leave to appeal refused with costs.
Legal Topics
['leave to Appeal From Interlocutory Decision' 'interlocutory Injunction' 'caveat' 'sale of Property' 'mortgagee Sale' 'balance of Convenience']
['practice and Procedure' 'appeals' 'equity'] ['leave to Appeal From Interlocutory Decision' 'interlocutory Injunction' 'caveat' 'sale of Property' 'mortgagee Sale' 'balance of Convenience']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Interlocutory Orders / Court of Appeal Application for Leave to Appeal

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from Brereton J's interlocutory orders concerning the Property." 'Whether the primary judge erred in the formulation of an interlocutory regime permitting Aquatic to sell the Property while preserving net proceeds pending the Substantive Proceedings.' "Whether Aquatic's default under undertakings and the NAB mortgage meant the primary judge's discretion miscarried."]

Ratio Decidendi

Leave to appeal was refused because the Siewerts failed to identify any error of principle, material factual error, irrelevant consideration, failure to consider a relevant matter, or unreasonable or unjust result in Brereton J's discretionary interlocutory decision. No basis for leave was established and no injustice would be suffered, particularly as further application to the primary judge remained open if circumstances had changed.

Court Disposition

Application for leave to appeal refused with costs.

Orders

  • ['Application for leave to appeal refused with costs.' "The Siewerts should pay Aquatic's costs of the application for leave to appeal."]