ABDEL-MESSIH v Qaqish

The appeal in Abdel-Messih v Qaqish concerns an application for an extension of time to appeal a decision of the Supreme Court of Western Australia dismissing the appellant's application for summary judgment. The appellant, Raouf Abdel-Messih, brought proceedings against the respondent, Muin Qaqish, claiming moneys owed under a guarantee. The case was heard by the Court of Appeal of Western Australia, with the appeal being dismissed. The central issue before the court was whether the appeal was competent, specifically whether the right of appeal was excluded by section 60(1)(b) of the Supreme Court Act 1935 (WA).

The court considered whether the order dismissing the appellant's application for summary judgment constituted an order granting unconditional leave to defend, which would exclude any right of appeal under section 60(1)(b). The court concluded that the master's order dismissing the application without imposing any conditions effectively granted unconditional leave to the respondent to defend the action. Therefore, any right of appeal was excluded by the statute. The court relied on precedents such as Builders Licensing Board v Sperway Construction (Syd) Pty Ltd and Commissioner for Railways (NSW) v Cavanough, which emphasised that appeals are creatures of statute and that a right of appeal exists only to the extent that a statutory provision confers such a right.

Based on the reasoning above, the court dismissed the appeal and refused the appellant's application for an extension of time to appeal. The court held that the order dismissing the application for summary judgment was in substance an order granting unconditional leave to defend, thereby excluding any right of appeal under section 60(1)(b) of the Supreme Court Act 1935 (WA). The court's decision was based on the clear statutory language and its interpretation of the relevant case law. The court made an order refusing the application for an extension of time to appeal and dismissed the appeal.