Alamin v Islam & Ors [2023] NSWCA 326

Alamin v Islam & Ors [2023] NSWCA 326

Leave to appeal was refused because the applicant did not identify any issue of principle, question of public importance, or reasonably clear injustice going beyond a merely arguable case. The proposed challenges to the refusal of mandatory interlocutory relief had little or no prospect of success given the weakness of the rectification case, the applicant's default under the deed, the absence of compelling evidence of inability to obtain funds or alternative finance, the disadvantage to the respondent if the charge were removed, and the unsecured undertaking as to damages. Without a basis to challenge the refusal of injunctive relief, there was no basis to challenge the costs order, and...

Jurisdiction
Australia
Judgment Date
20 December 2023
Procedural Posture
Application for Leave to Appeal From Costs Orders Following Dismissal of Application for Mandatory Interlocutory Injunctive Relief / Court of Appeal Summons Seeking Leave to Appeal
Outcome
The summons seeking leave to appeal is dismissed with costs.
Legal Topics
['leave to Appeal' 'costs Orders' 'indemnity Costs' 'mandatory Interlocutory Injunction' 'rectification' 'common Mistake' 'deed of Settlement and Release' 'balance of Convenience']
['appeals' 'civil Procedure' 'equity' 'costs'] ['leave to Appeal' 'costs Orders' 'indemnity Costs' 'mandatory Interlocutory Injunction' 'rectification' 'common Mistake' 'deed of Settlement and Release' 'balance of Convenience']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Costs Orders Following Dismissal of Application for Mandatory Interlocutory Injunctive Relief / Court of Appeal Summons Seeking Leave to Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from costs orders made after dismissal of an application for mandatory interlocutory injunctive relief.' 'Whether the primary judge erred in refusing mandatory interlocutory injunctive relief requiring removal of a PPSR charge over shares.' 'Whether the primary judge failed properly to consider irreparable harm, hardship and the balance of convenience.' 'Whether the primary judge erred in ordering indemnity costs under the default costs clause of the deed of settlement.']

Ratio Decidendi

Leave to appeal was refused because the applicant did not identify any issue of principle, question of public importance, or reasonably clear injustice going beyond a merely arguable case. The proposed challenges to the refusal of mandatory interlocutory relief had little or no prospect of success given the weakness of the rectification case, the applicant's default under the deed, the absence of compelling evidence of inability to obtain funds or alternative finance, the disadvantage to the respondent if the charge were removed, and the unsecured undertaking as to damages. Without a basis to challenge the refusal of injunctive relief, there was no basis to challenge the costs order, and...

Court Disposition

The summons seeking leave to appeal is dismissed with costs.

Orders

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