OLDFIELDS PTY LIMITED v ALFAR [1995] NSWCA 343

OLDFIELDS PTY LIMITED v ALFAR

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBy P, CLARKE JA and COLE JA 30 October 1995

[1995] NSWCA 343

APPEAL — leave to appeal — single judge reverses Master — whether erroneous approach — credibility findings — trial would be short — held: Leave refused on grounds of timeliness — point reserved for any later appeal as of right.

Kirby P. This case is on the borderline. However, the Court is of the view, for reasons which have been exposed in exchanges with counsel, that it is not a matter in which the Court should grant leave to appeal.

This is not necessarily to confirm the approach taken by Spender AJ. The correctness of his Honour's approach to the exercise of his functions, on appeal from Master Malpass, may, at a later time, be the subject of the consideration of this Court. Nothing that the Court does, or says, today will close the claimant off from raising the objection which has been advanced in support of the summons for leave to appeal.

The issue is one of timeliness. The Court has been told that the trial would, if heard to completion, last one day plus. There could be further challenges from the outcome of such a trial. The claimant will have a full opportunity, in any laterappeal, to raise any objection against the matters which have been raised in the summons for leave to appeal. Those matters will be left open to the claimant. They are more conveniently dealt with at the time of an appeal against the final judgment than at this stage of the proceedings.

The Court therefore refuses leave to appeal. The claimant must pay the opponent's costs of the summons.

Orders accordingly.

Counsel for the appellant: P H Greenwood/A Ripley Solicitors for the appellant: Hickson Lakeman and Holcombe Counsel for the respondent: M L Williams

Solicitors for the respondent: Carroll and O'Dea