UNITED RUBBER (AUSTRALIA) PTY LTD v BINIOS [1998] NSWCA 243

UNITED RUBBER (AUSTRALIA) PTY LTD v BINIOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P and SHELLER JA 15 June 1998

[1998] NSWCA 243

Mason P I would refuse leave in this matter. It concerns a very small award of $3,276. The material put before us is quite deficient in that it does not contain relevant evidence or information as to exactly what matters were debated below.

Two matters were pressed, a challenge to the finding of Acting Judge Bagnall on estoppel and his finding on quantum. On the material before us I am not satisfied that the Anshun basis of estoppel which is now sought to be raised was argued below and for that reason would refuse leave to debate that point.

As to the question of quantum if this were a proper case for debating the question of construction of the interaction between s68A and s131(5) of the Act I would have granted leave. But I am far from persuaded on the material that is before us that a grant of leave would lead to any different award.

It is most unfortunate that we are left to speculate and infer from uncertain material produced from the bar table. But I do not see why, if we are not persuaded that leave is likely to result in a different award, leave should be granted. I would refuse it with costs.

Sheller JA I agree.

HICKEY: Your Honour could I just make an ancillary application. The proceedings were commenced on an incompetent basis without leave and in my submission the opponent ought be entitled to costs of the motion which was put on in relation to striking out the notice of appeal. Might I have costs in relation to that.

Mason P The leave application was brought in response to a motion to dismiss the original appeal as incompetent.

Mr Cohen frankly conceded that it was. I think that the order for costs should include the motion for striking out of the appeal on the ground of incompetence.