Great Wall Resources Pty Ltd v O'Sullivan & Anor [2009] NSWCA 119

Great Wall Resources Pty Ltd v O'Sullivan & Anor [2009] NSWCA 119

The appeal was incompetent as leave to appeal was required and not obtained; further, the challenges to damages were without merit, and admitting fresh evidence of subsequent extinguishment would undermine the principle of finality in litigation. Even if errors occurred at first instance, it would not be appropriate to grant leave due to the modest quantum in issue, delay by the appellant, the risk of more evidence arising at a new trial, and the failure to adequately explain the delay in obtaining extinguishment.

Jurisdiction
Australia
Judgment Date
04 June 2009
Procedural Posture
Civil Appeal / Application for Leave to Appeal; Appeal From Damages Assessment
Outcome
Appeal dismissed as incompetent; leave to appeal refused; appellant's notice of motion dismissed; costs to respondents.
Legal Topics
['leave to Adduce Fresh Evidence' 'valuation of Land' 'damages Assessment' 'extinguishment of Easement']
['appeal' 'real Property'] ['leave to Adduce Fresh Evidence' 'valuation of Land' 'damages Assessment' 'extinguishment of Easement']

Case Brief

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Procedural Posture

Civil Appeal / Application for Leave to Appeal; Appeal From Damages Assessment

Legal Issues

  1. 1 ['Whether leave should be granted to appeal a judgment assessing damages for breach of contract concerning extinguishment of a right of way' 'Whether fresh evidence of extinguishment of the easement after trial should be admitted on appeal' 'Whether the rejection of evidence before the primary judge regarding the likelihood of extinguishment of the right of way was relevant to damages assessment']

Ratio Decidendi

The appeal was incompetent as leave to appeal was required and not obtained; further, the challenges to damages were without merit, and admitting fresh evidence of subsequent extinguishment would undermine the principle of finality in litigation. Even if errors occurred at first instance, it would not be appropriate to grant leave due to the modest quantum in issue, delay by the appellant, the risk of more evidence arising at a new trial, and the failure to adequately explain the delay in obtaining extinguishment.

Court Disposition

Appeal dismissed as incompetent; leave to appeal refused; appellant's notice of motion dismissed; costs to respondents.

Orders

  • ['The appeal be dismissed as incompetent.' "The appellant's Notice of Motion filed on 6 May 2009 be dismissed." "The appellant's application for leave to appeal be dismissed." "The appellant pay the respondents' costs of the purported appeal, the Notice of Motion and of the application for leave to appeal."]