Attia v Caird Seven Pty Ltd [2016] NSWCA 271

Attia v Caird Seven Pty Ltd [2016] NSWCA 271

Leave to appeal was refused because the proposed appeal did not raise an issue of principle, public importance or reasonably clear injustice. The primary judge did not err by considering only alleged breaches and material after 21 April 2016 because that was the case expressly advanced and confirmed by the applicants below. The applicants were not permitted to depart on appeal from that abandoned position, no House v The King error was shown in the discretionary refusal to vacate the consent orders for specific performance, and in any event the evidence did not establish a prima facie breach of clause 9.1.1.

Jurisdiction
Australia
Judgment Date
28 September 2016
Procedural Posture
Application for Leave to Appeal From Orders Refusing to Vacate Consent Orders for Specific Performance / Court of Appeal Summons for Leave to Appeal
Outcome
Summons seeking leave to appeal dismissed with costs.
Legal Topics
['leave to Appeal' 'specific Performance' 'consent Orders' 'vacating Orders' 'breach of Contract' 'election to Affirm' 'new Point on Appeal']
['procedure' 'equity' 'contract Law'] ['leave to Appeal' 'specific Performance' 'consent Orders' 'vacating Orders' 'breach of Contract' 'election to Affirm' 'new Point on Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal From Orders Refusing to Vacate Consent Orders for Specific Performance / Court of Appeal Summons for Leave to Appeal

Legal Issues

  1. 1 ['Whether the applicants should be permitted to argue on appeal that the respondent breached clause 9.1.1 before 21 April 2016 when that case was expressly abandoned before the primary judge.' 'Whether the primary judge applied the wrong test by considering only alleged breaches and material after 21 April 2016.' 'Whether the applicants established a prima facie case or serious question to be tried that Caird breached clause 9.1.1 of the Rescission Deed.' "Whether the primary judge's refusal to vacate the consent orders for specific performance involved error within House v The King."]

Ratio Decidendi

Leave to appeal was refused because the proposed appeal did not raise an issue of principle, public importance or reasonably clear injustice. The primary judge did not err by considering only alleged breaches and material after 21 April 2016 because that was the case expressly advanced and confirmed by the applicants below. The applicants were not permitted to depart on appeal from that abandoned position, no House v The King error was shown in the discretionary refusal to vacate the consent orders for specific performance, and in any event the evidence did not establish a prima facie breach of clause 9.1.1.

Court Disposition

Summons seeking leave to appeal dismissed with costs.

Orders

  • ['Summons seeking leave to appeal dated 4 August 2016 dismissed with costs.']