Valder v Wolak & Anor [2012] NSWCA 189

Valder v Wolak & Anor [2012] NSWCA 189

Although the order of 25 May 2012 was made in the applicant's absence, the Court had also dismissed the summons because it was out of time and because there was no arguable case for leave. On reconsideration, the proposed appeal disclosed no error in Rothman J's interlocutory orders: no injunctive relief was pressed, there was no immediate threat requiring urgent relief, no basis was established for continued occupation, the applicant was no longer in possession, and the substantive money claim was not before the Supreme Court. The Court therefore would not grant leave to appeal and dismissed the notice of motion with costs.

Jurisdiction
Australia
Judgment Date
08 June 2012
Procedural Posture
Notice of Motion Seeking to Set Aside Order Dismissing Summons for Leave to Appeal / Court of Appeal Notice of Motion After Dismissal for Non Appearance
Outcome
Notice of motion dismissed with costs.
Legal Topics
['setting Aside Orders' 'leave to Appeal' 'non Appearance' 'interlocutory Orders' 'injunctive Relief' 'costs']
['civil Procedure' 'appeal' 'tenancy'] ['setting Aside Orders' 'leave to Appeal' 'non Appearance' 'interlocutory Orders' 'injunctive Relief' 'costs']

Case Brief

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Procedural Posture

Notice of Motion Seeking to Set Aside Order Dismissing Summons for Leave to Appeal / Court of Appeal Notice of Motion After Dismissal for Non Appearance

Legal Issues

  1. 1 ['Whether the Court should set aside the orders made on 25 May 2012 dismissing the summons for leave to appeal and ordering costs.' 'Whether the proposed appeal from the interlocutory orders made by Rothman J on 20 December 2011 had sufficient merit to warrant leave to appeal.' 'Whether the Court had power to make orders requiring the respondents to file a defence or address for service when the substantive proceedings had been transferred to the Local Court.']

Ratio Decidendi

Although the order of 25 May 2012 was made in the applicant's absence, the Court had also dismissed the summons because it was out of time and because there was no arguable case for leave. On reconsideration, the proposed appeal disclosed no error in Rothman J's interlocutory orders: no injunctive relief was pressed, there was no immediate threat requiring urgent relief, no basis was established for continued occupation, the applicant was no longer in possession, and the substantive money claim was not before the Supreme Court. The Court therefore would not grant leave to appeal and dismissed the notice of motion with costs.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['The notice of motion is dismissed with costs.']