Morton v Kim [2019] NSWCA 273

Morton v Kim [2019] NSWCA 273

Leave to appeal was refused because the trial judge's construction of the indemnity was clearly open: Mr Morton's expenses resulted from his own failure to execute the deed of novation under the second contract, a step only he could take, and did not arise as a result of the first contract within special condition 32.3. The proposed appeal raised no issue of general public importance, and the small amount in issue and likely disproportionate appeal costs militated against leave.

Jurisdiction
Australia
Judgment Date
08 November 2019
Procedural Posture
Application for Leave to Appeal / On the Papers From the Judgment of Kunc J in the Equity Division Dismissing the Applicant's Cross Claim
Outcome
Summons seeking leave to appeal dismissed.
Legal Topics
['leave to Appeal Where Amount in Issue Below Statutory Threshold' 'construction of Indemnity Clause' 'novation of Contract for Sale of Land' 'costs of Proceedings' 'disproportion Between Appeal Costs and Amount in Issue']
['appeal and Review' 'guarantee and Indemnity' 'contract Law' 'real Property'] ['leave to Appeal Where Amount in Issue Below Statutory Threshold' 'construction of Indemnity Clause' 'novation of Contract for Sale of Land' 'costs of Proceedings' 'disproportion Between Appeal Costs and Amount in Issue']

Case Brief

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Procedural Posture

Application for Leave to Appeal / On the Papers From the Judgment of Kunc J in the Equity Division Dismissing the Applicant's Cross Claim

Legal Issues

  1. 1 ['Whether leave to appeal should be granted where the amount in issue was below the $100,000 threshold in s 101(2)(r) of the Supreme Court Act 1970 (NSW).' "Whether the indemnity in special condition 32.3 covered Mr Morton's legal costs incurred because of his failure to execute the deed of novation." 'Whether the proposed appeal raised an issue of principle, a question of general public importance, or a reasonably clear injustice.']

Ratio Decidendi

Leave to appeal was refused because the trial judge's construction of the indemnity was clearly open: Mr Morton's expenses resulted from his own failure to execute the deed of novation under the second contract, a step only he could take, and did not arise as a result of the first contract within special condition 32.3. The proposed appeal raised no issue of general public importance, and the small amount in issue and likely disproportionate appeal costs militated against leave.

Court Disposition

Summons seeking leave to appeal dismissed.

Orders

  • ["Dismiss the summons seeking leave to appeal from the judgment of Kunc J in the Equity Division dismissing the applicant's cross-claim." 'Order that the applicant pay the costs of the first respondent (Ms Kim) on the usual basis and one set of costs with respect to the second and third respondents (Mr Hu and Ms...