TRIDEN PROPERTIES LTD v CAPITA FINANCIAL GROUP LTD [1993] NSWCA 272

TRIDEN PROPERTIES LTD v CAPITA FINANCIAL GROUP LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 8 November 1993, 26 November 1993

[1993] NSWCA 272

APPEALS — INTERLOCUTORY AND FINAL ORDERS — LEAVE TO APPEAL REQUIRED IN RESPECT OF INTERLOCUTORY ORDERS — FINAL ORDERS ARE ORDERS WHICH FINALLY DISPOSE OF ALL THE RIGHTS OF A PARTY.

APPEALS — Motion to strike out appeal — question as to whether orders appealed were interlocutory or final — issues litigated had been separated into questions of liability and questions as to damages pursuant to Pt31 of the Supreme Court Rules — judgment given for the claimant on liability question — no order yet made as to damages. HELD: A judgment determining issues of liability but leaving open the assessment of damages is not a final judgment.

Clarke JA On 8 November 1993 Capita Financial Group Ltd ("the claimant") applied to the court for orders that the whole of the appeal in this matter be struck out upon the ground that the judgments and orders sought to be appealed from were interlocutory and there had been no grant of leave pursuant to s101 of the Supreme Court Act 1970. Triden Properties Ltd ("the opponent') resisted the application upon the grounds that the substantial judgment against which the appeal was brought was a final one and the other orders were ancillary to that judgment. In addition the opponent applied to the court for leave to appeal from the various judgments and orders upon the basis that the applications for leave would only be proceeded with in the event that the appeal was ruled incompetent.

The Court then decided that the appeal was incompetent and, after hearing submissions in support of the summons for leave to appeal, refused leave. At the time of announcing its decision the court informed the parties that it would publish reasons in support of its order striking out the appeal and those reasons follow. In accordance with its usual practice the court did, and will, not furnish reasons for declining to grant leave.