Fokas v Mansfield (No. 2)

[2017] NSWCA 261

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeals
3. › Competency of appeal
4. › Interlocutory orders
5. › Whether order striking out notice of motion is interlocutory
6. › Whether leave to appeal required
7. › Supreme Court Act 1970 (NSW), ss 101(1)(a), 101(2)(e)
1. Practice and Procedure
2. › Appeals
3. › Power of single Judge of Appeal
4. › Dismissal of incompetent appeal on court's own motion
5. › Whether power exists absent respondent's application
6. › Supreme Court Act 1970 (NSW), s 46(1)(b), s 46(2)(b)
7. › Uniform Civil Procedure Rules 2005 (NSW), r 51.41
1. Practice and Procedure
2. › Injunctions
3. › Interlocutory injunction
4. › Restraining trustee in bankruptcy from exercising power of sale
5. › Whether in interests of justice
6. › Whether arguable defence to claim for possession

Quick Take

An order striking out or summarily dismissing a notice of motion is an interlocutory order requiring leave to appeal under s 101(2)(e) of the Supreme Court Act 1970 (NSW), even where it brings the proceeding to a conclusion. A single Judge of Appeal has power under s 46(2)(b) to dismiss an appeal as incompetent on the Court's own motion, without a respondent's application under UCPR r 51.41.