ABIGROUP Ltd v TRANSFIX REINFORCING PTY LTD [1992] NSWCA 3

ABIGROUP Ltd v TRANSFIX REINFORCING PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and SHELLER JJA 2 June 1992, 2 June 1992 [1992] NSWCA 3

PRACTICE and PROCEDURE — appeal from separated question — application for leave — evidence of witnesses accepted by trial judge favours his conclusion decision on facts — held: Leave to appeal refused.

Kirby P (Delivering the decision of the Court): Despite the very capable way inwhich Mr Nell put the argument for his client to secure leave, the Court is of the opinion that leave to appeal should be refused.

There are, it is true, certain advantages in bringing the matter up at this stage. The parties earlier agreed to sever the question of whether the dispute between them had been compromised. That is the matter which was dealt with by Rolfe J. The determination of that question dealt overwhelmingly, if not exclusively, with the acceptance of the evidence of certain witnesses. To overcome a determination so based, the claimant would have to be able to point to palpable error on the part of the trial judge. Yet, far from there being incontrovertible evidence which supported the case of the claimant, such contemporaneous written evidence as was available to Rolfe J appears either to have been equivocal or actually to provide support to the case of the opponent.

Therefore, this appears to be an appeal with very real difficulties on the merits. It is confined to its facts. The Court is therefore of the opinion that it is not appropriate to bring it up now.

Necessarily, this determination does not close out the claimant. If in the future, after the litigation of the whole matter, the case comes here from a final judgment, the merits can be explored. The claimant may then raise its contentions against the determination of Rolfe J which it advanced during the hearing of this summons. They will then be dealt with in an appeal as of right.