LEDA MARINE PTY LTD v PROPELLER RECONDITIONERS PTY LTD [1997] NSWCA 187

LEDA MARINE PTY LTD v PROPELLER RECONDITIONERS PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA and SHELLER JA 24 November 1997

[1997] NSWCA 187

Priestley JA. This application for leave concerns part of proceedings on foot in which one commercial entity is seeking to recover a considerable sum for work done from another and that other has various cross-claims and defences to the amount claimed.

The basis of the application for leave is that one aspect of the case has been decided and it would be inconvenient and inefficient for the rest of the case to be decided before the question that is sought to be brought before the court on appeal by leave is decided.

After hearing the parties and in particular after hearing Mr Anderson for the claimant explain why in his client's contention observations by the trial judge on factual matters were wrong and would lead to an appeal being upheld on this aspect of the case, the court has come to the conclusion that the matters sought to be agitated on the appeal are entirely factual and that the clear mistake or mistakes which the trial judge is submitted to have made in regard to one important aspect of the factual issues would be most unlikely tobe made out on appeal. The particular factual area is that dealt with by the trial judge at p 37 of the copy of his reasons which we have had before us.

On reading those in conjunction with the submissions made about them, they seem to us to fall into the area in which intermediate Courts of Appeal should not enter with a view to interference unless there have been palpable mistakes or misuse by the trial judge of the advantages that he has as a trial judge. The prospect of the claimant being able to make out such errors on the part of the trial judge in an appeal seems to us to be so small as not to warrant the granting of leave to appeal.