Fink v Beaven [2010] NSWCA 92

Fink v Beaven [2010] NSWCA 92

Although the application for leave to appeal was only shortly out of time and an extension should be granted, leave to appeal should be refused because the proposed grounds raised detailed factual or mixed factual and legal issues, no matter of principle or general public importance, and no obvious injustice; the unpleaded trespass had been litigated without complaint, and no obvious error was shown in the conversion finding. The relatively small amount in issue reinforced refusal of leave.

Jurisdiction
Australia
Judgment Date
27 April 2010
Procedural Posture
Application for Extension of Time and Application for Leave to Appeal From District Court Judgments / New South Wales Court of Appeal Ex Tempore Judgment on Leave Application
Outcome
Application for extension of time granted; application for leave to appeal dismissed.
Legal Topics
['leave to Appeal' 'extension of Time' 'trespass' 'conversion' 'slander' 'unpleaded Issue' 'small Amount in Issue']
['procedure' 'torts'] ['leave to Appeal' 'extension of Time' 'trespass' 'conversion' 'slander' 'unpleaded Issue' 'small Amount in Issue']

Case Brief

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Procedural Posture

Application for Extension of Time and Application for Leave to Appeal From District Court Judgments / New South Wales Court of Appeal Ex Tempore Judgment on Leave Application

Legal Issues

  1. 1 ['Whether an extension of time should be granted for an application for leave to appeal filed shortly out of time.' 'Whether leave to appeal should be granted where the amount in issue was small and the proposed grounds raised no matter of principle or general public importance and no obvious injustice.' 'Whether the primary judge could take into account an unpleaded trespass that was litigated after disclosure in cross-examination and addressed in submissions without complaint about pleading.' 'Whether the primary judge erred in finding conversion where goods were received by the second applicant from police who had taken them into custody.']

Ratio Decidendi

Although the application for leave to appeal was only shortly out of time and an extension should be granted, leave to appeal should be refused because the proposed grounds raised detailed factual or mixed factual and legal issues, no matter of principle or general public importance, and no obvious injustice; the unpleaded trespass had been litigated without complaint, and no obvious error was shown in the conversion finding. The relatively small amount in issue reinforced refusal of leave.

Court Disposition

Application for extension of time granted; application for leave to appeal dismissed.

Orders

  • ['That the application for extension of time be granted with costs of that application being payable by the applicants.' 'That the application for leave to appeal be dismissed with costs.']