O'Keefe & Anor. v. Eccleston & Anor. [2007] NSWCA 294

New South Wales Court of Appeal

CITATION: O'Keefe & Anor. v. Eccleston & Anor. [2007] NSWCA 294

HEARING DATE(S): 15 October 2007 JUDGMENT OF: Hodgson JA at 1; Ipp JA at 5; Handley AJA at 6

EX TEMPORE JUDGMENT DATE: 15 October 2007

DECISION: Application for leave to appeal dismissed with costs.

CATCHWORDS: PRACTICE - Application for leave to appeal - Leave refused.

PARTIES: David Daniel O'Keefe & Kathryn Michelle O'Keefe - claimants Peter Bryan Eccleston & Lucy Finette Taylor Eccleston - opponents

FILE NUMBER(S): CA 40204/07

COUNSEL: Mr. J. Wilson SC with Ms. K. Burke - claimants Mr. C. Harris SC with Mr. D. Williams - opponents

SOLICITORS: McIntosh McPhillamy & Co. for claimants Rickards Whiteley for opponents

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 4922/06

LOWER COURT JUDICIAL OFFICER: Windeyer J

LOWER COURT DATE OF DECISION: 6 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 159

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40204/07 SC 4922/06

HODGSON JA IPP JA HANDLEY AJA

Monday 15 October 2007 O'KEEFE & ANOR. V. ECCLESTON & ANOR. Judgment 1 HODGSON JA: This is an application for leave to appeal from a decision of Windeyer J in which he answered four separate questions for determination. The application relates only to his answers to questions three and four of those four questions. 2 There is a separate matter raised in the application concerning what might be seen as a finding of fact in para [17] of his reasons. In relation to that matter, I would simply note that the parties are agreed that the matter in para [17] was not within the four questions submitted for determination, and what might seem to be a finding in para [17] is not a finding that is binding on the parties. 3 As regards the two questions in respect of which leave is sought, in my opinion the matters raised do not indicate any significant possibility that the primary judge was wrong in substance in the answers which he gave. I think the reasons for this view sufficiently appear from the debate that has occurred with Counsel, and for those reasons I would not grant leave to appeal. 4 IPP JA: I agree. 5 HANDLEY AJA: I agree. 6 HODGSON JA: So the order of the court is application for leave to appeal dismissed with costs. **********