Cassaniti v Ruse NSW Pty Ltd

The applicants, Cassaniti, sought leave to appeal from a decision of the New South Wales Supreme Court. The dispute concerned an application for leave to appeal against an earlier decision that had refused to set aside a default judgment. The core of the applicants' argument for leave to appeal rested on the assertion that the primary judge had erred in finding fraud, a finding made on a separate question that was not pleaded and was not relevant to the issues to be tried.

The central legal issue before the Court of Appeal was whether there were circumstances favouring the grant of leave to appeal. This involved considering whether the primary judge's findings of fraud, made in the context of a separate determination where evidence was limited and the question of fraud was not pleaded or relevant to the remaining issues, constituted an error that warranted appellate intervention.

The Court of Appeal reasoned that the circumstances did not favour granting leave to appeal. The court noted that the question of fact concerning fraud had not been decided on a separate determination in a manner that would be subject to appeal. Furthermore, the question of fraud arose on the trial of the remaining issues, and the evidence presented on the separate determination was limited. Consequently, the court concluded that the appeal did not present a sufficient basis for granting leave.

Leave to appeal was dismissed with costs.