Neale v Ancher Mortlock and Woolley Pty Ltd; Ancher Mortlock and Woolley Pty Ltd v Neale

[2013] NSWCA 209

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Appeals
3. › Amendment of notice of appeal
4. › Whether proposed amended grounds raise arguable appeal
5. › Whether amendment would be susceptible to strike-out
6. › Civil Procedure Act 2005 (NSW), ss 58(1), 64(1), 64(2)
1. Practice and Procedure
2. › Appeals
3. › Security for costs
4. › Special circumstances requirement
5. › Impecuniosity of appellant
6. › Whether bona fide and reasonably arguable appeal would be stifled
7. › Uniform Civil Procedure Rules 2005 (NSW), r 51.50(1)
1. Contract
2. › Construction
3. › Termination clauses
4. › Accrued rights
5. › Whether right to payment contingent on event not yet occurred constitutes accrued fee
6. › Whether construction should have regard to commercial sense and agreement as a whole
1. Contract
2. › Termination
3. › Rights surviving termination
4. › Whether accrued rights to receive performance survive termination
5. › Relevance of terms of contract, performance rendered, and relations between obligations

Quick Take

Where an appellant demonstrates a bona fide and reasonably arguable appeal that would be stifled by an order for security for costs, the security application should be refused even where the appellant admits impecuniosity. A construction of a termination clause that gives a party greater rights to payment upon termination than during the life of the contract may lack commercial sense and requires thorough engagement with the agreement as a whole.