Assad v Eliana Construction and Developing Group Pty Ltd

[2014] VSCA 152

Victorian Court of Appeal17 July 2014

Ratio Decidendi

Substantial injustice for the purposes of leave to appeal may be established where the applicant is exposed to the risk of an adverse finding in an accounting or inquiry that might prove unnecessary if the appeal succeeds, and the prospect of additional and unnecessary costs being incurred is very real. It is not a sufficient answer to the prospect of substantial injustice that there would be a further opportunity for appeal after a final order.

Quick Take

Orders that provide for the future conduct of proceedings (such as appointment of a special referee) remain interlocutory even where they are founded upon final conclusions on substantive issues. Inadequacy of reasons for rejecting a settlement agreement claim, particularly where documented transactions are not addressed, may constitute sufficient doubt to warrant leave to appeal. A stay of interlocutory orders pending appeal will be granted where the appeal would be defeated by the orders taking effect.

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Linked Principles

Legal principles extracted from this case

01Substantial injustice for the purposes of leave to appeal may be established where the applicant is exposed to the risk of an adverse finding in an accounting or inquiry that might prove unnecessary if the appeal succeeds, and the prospect of additional and unnecessary costs being incurred is very real. It is not a sufficient answer to the prospect of substantial injustice that there would be a further opportunity for appeal after a final order.
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Case Details

Citation[2014] VSCA 152

CourtVSCA

JurisdictionVic

Decision Date17 July 2014

Built by Barristers,
For Australian Law.

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Judgment

Authorities Cited5›

Cases considered by Assad v Eliana Construction and Developing Group Pty Ltd

Referred to (5)

[2014] VSC 143 Assad v Eliana Construction and Developing Group Pty Ltd [2014] VSCA 152 Re Landsal Pty Ltd (In Liquidation); WA Reid Constructions Pty Ltd (In Liquidation); Andrew Thomas Abraham Reid; Franklyn Richard John White and Kathleen Carole White v Rei Building Society, Now the Co-Operative Building Society of South Australi [1993] FCA 121 Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89

Subsequent Judicial Consideration1›

Cases that have considered Assad v Eliana Construction and Developing Group Pty Ltd

Referred to (1)

Assad v Eliana Construction and Developing Group Pty Ltd [2014] VSCA 152

Judicial Consideration (Chronological)

Assad v Eliana Construction and Developing Group Pty Ltd [2014] VSCA 152Referred to

The duty of a solicitor to advise a client of the risks of litigation extends to advising on the prospects of recovery of costs in the event of success, particularly where the opposing party may lack the means to satisfy a costs order

The duty of a solicitor to advise a client of the risks of litigation extends to advising on the prospects of recovery of costs in the event of success, particularly where the opposing party may lack the means to satisfy a costs order.

Assad v Eliana Construction and Developing Group Pty Ltd at [30]

Where a party seeks to rely upon an estoppel by convention, the party must demonstrate that the common assumption was shared by both parties and that it would be unconscionable to permit departure from it

Where a party seeks to rely upon an estoppel by convention, the party must demonstrate that the common assumption was shared by both parties and that it would be unconscionable to permit departure from it.

Assad v Eliana Construction and Developing Group Pty Ltd at [37]