He v Yeung [2015] NSWCA 392

He v Yeung [2015] NSWCA 392

Leave to appeal was refused because the applicant raised no matter of general principle or public importance, the proposed appeal had no prospect of success, and there was no error in the primary judge's finding that the bank cheque was handed over. The finding was supported by the 2005 loan document, the 2006 mortgage-related documents recognising the $140,000 loan, the absence of contemporaneous written complaint about non-receipt of the cheque, credibility findings, and other evidence available at trial. The proposed further evidence was rejected because it had not been adduced at trial and the respondent had not had the opportunity to investigate it.

Jurisdiction
Australia
Judgment Date
10 December 2015
Procedural Posture
Application for Leave to Appeal / Court of Appeal From Supreme Court of NSW Equity Decision of Young AJ
Outcome
Leave to appeal refused.
Legal Topics
['leave to Appeal' 'loan Agreements' 'bank Cheque Advance' 'unregistered Mortgage' 'caveat' 'challenge to Factual Findings' 'fresh Evidence']
['appeal' 'equity' 'contract' 'mortgages'] ['leave to Appeal' 'loan Agreements' 'bank Cheque Advance' 'unregistered Mortgage' 'caveat' 'challenge to Factual Findings' 'fresh Evidence']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal From Supreme Court of NSW Equity Decision of Young AJ

Legal Issues

  1. 1 ['Whether the matter required leave to appeal because the amount in issue was less than $100,000.' 'Whether the applicant should be permitted to rely on further evidence, including bank statements and evidence challenging witnesses to the mortgage signing.' "Whether there was any error in the primary judge's finding that the bank cheque for $30,504.33 was handed over to the applicant and her husband." 'Whether there was any matter of principle, public importance, clear injustice or prospect of success warranting leave to appeal.']

Ratio Decidendi

Leave to appeal was refused because the applicant raised no matter of general principle or public importance, the proposed appeal had no prospect of success, and there was no error in the primary judge's finding that the bank cheque was handed over. The finding was supported by the 2005 loan document, the 2006 mortgage-related documents recognising the $140,000 loan, the absence of contemporaneous written complaint about non-receipt of the cheque, credibility findings, and other evidence available at trial. The proposed further evidence was rejected because it had not been adduced at trial and the respondent had not had the opportunity to investigate it.

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal refused.' "The applicant is to pay the respondent's costs."]