HP Mercantile Pty Ltd v Kym and Paul Clements

[2015] NSWCA 212

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Leave to appeal
3. › Amount in issue
4. › Whether amount in issue determined at time of hearing
5. › Whether leave required where amount reduced below $100,000 by settlement deed
6. › Supreme Court Act 1970 (NSW), s 101(2)(r)
1. Appeal
2. › Leave to appeal
3. › Discretionary considerations
4. › Whether leave should be granted where proceedings hypothetical between parties
5. › Whether inappropriate to grant leave where appeal pursued solely for precedential value to bind non-parties
1. Practice and Procedure
2. › Appeals
3. › Moot proceedings
4. › Whether court should determine appeal where dispute resolved by deed
5. › Whether proceedings designed solely to create precedent binding on non-parties are appropriate

Quick Take

Where parties settle a dispute by deed but seek to continue an appeal solely for its precedential value in other proceedings, leave to appeal will be refused. The amount in issue for the purposes of the leave requirement is assessed at the time of hearing, not when the appeal was instituted. Courts will not grant leave to determine hypothetical disputes designed to bind non-parties who have no opportunity to be heard, as this is an inappropriate use of the appellate process and could be productive of substantial injustice.