Diveva Pty Limited (ACN 003 799 815) v Nominal Defendant

[2013] NSWCA 325

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeals
3. › Extension of time to file notice of appeal
4. › Whether appeal fairly arguable
5. › Whether notice of appeal doomed to failure
6. › Uniform Civil Procedure Rules 2005 (NSW), r 51.16
1. Practice and Procedure
2. › Appeals
3. › Necessary parties to appeal
4. › Whether person directly affected by relief sought must be joined
5. › Whether plaintiff necessary party where cross-claim orders challenged
6. › Uniform Civil Procedure Rules 2005 (NSW), r 51.4(1)
1. Practice and Procedure
2. › Appeals
3. › Scope of appeal
4. › Appeal from final judgment
5. › Whether interlocutory order can be corrected on appeal from final judgment
6. › Whether appellant must expressly challenge interlocutory judgment in notice of appeal
7. › Supreme Court Act 1970 (NSW), s 101(1)(a)
1. Practice and Procedure
2. › Appeals
3. › Rights of appeal
4. › Appeal against judgments and orders not against reasons or findings
5. › Supreme Court Act 1970 (NSW), s 101(1)(a)

Quick Take

A party bound by an interlocutory judgment under s 22(3)(b) of the Civil Procedure Act 2005 (NSW) who wishes to challenge a finding made in that judgment on appeal from the final judgment must expressly identify the interlocutory judgment in its notice of appeal and join as necessary parties all persons whose rights are directly affected by setting aside that judgment. The Gerlach v Clifton Bricks principle — that interlocutory orders affecting the final result can be corrected on appeal from the final judgment — requires the appellant to actually challenge the interlocutory order in the notice of appeal.