Breen v Clough

The Court of Appeal of New South Wales, comprising Gleeson JA, Sackville AJA, and Emmett AJA, considered an appeal and a cross-appeal arising from a dispute between Mr Breen and Ms Dillon (appellants) and Ms Clough (respondent). The core of the dispute concerned the appellants' assertion that they had a realistic prospect of obtaining a judgment for at least $100,000 on appeal, a threshold requirement for the appeal to be competent under the relevant legislation.

The primary legal issue before the Court was whether the appellants had demonstrated a realistic prospect of obtaining a judgment for at least $100,000 on appeal, thereby establishing the competence of their appeal. A secondary issue arose concerning an oral application for leave to appeal, and a further issue related to Ms Clough's summons seeking leave to cross-appeal, specifically whether section 101(2)(r)(ii) of the relevant Act was engaged.

The Court reasoned that the appellants had failed to establish a realistic prospect of obtaining a judgment for at least $100,000 on appeal, rendering their appeal incompetent. The oral application for leave to appeal was refused on the basis that there was no issue of principle and no injustice in refusing leave. Furthermore, leave to cross-appeal was refused as section 101(2)(r)(ii) was not engaged.

Consequently, the Court ordered that the notice of appeal be dismissed as incompetent, the oral application for leave to appeal be refused, and leave to cross-appeal be refused. Each party was ordered to bear their own costs in the Court.