Landmark Operations Ltd v J Tiver Nominees Pty Ltd

In the matter of Landmark Operations Ltd v J Tiver Nominees Pty Ltd, the appellant sought to appeal against the refusal of a stay of execution of judgment. This case involved four previous applications for a stay, all of which had been declined by the trial judge. The appellant subsequently filed a notice of appeal against the substantive judgment but did not set down the appeal for a hearing. The focus of the appeal was the trial judge's refusal to grant a stay of execution of the judgment, and the principles that govern applications for leave to appeal against interlocutory orders. Additionally, the case involved the discontinuation of the appeal against the substantive judgment and the introduction of new arguments on appeal that had not been raised during the trial.

The court was required to determine whether an appeal could be made from the interlocutory decision to refuse a stay of execution and, if so, under what circumstances such an appeal could be granted. The court also had to assess whether the appellant's application for leave to appeal could be entertained, particularly given that the appeal against the substantive judgment was deemed to have been discontinued. Furthermore, the court needed to decide whether new arguments raised on appeal, which had not been presented during the trial, could be considered.

The court held that appeals from interlocutory decisions are generally not allowed unless there are exceptional circumstances. In this case, the court found that the appellant had not demonstrated any exceptional circumstances that would warrant an appeal from the interlocutory decision. Additionally, since the appeal against the substantive judgment was considered to have been discontinued, and there was no real prospect of success on appeal, the court refused to grant leave to appeal. The court emphasised that points and objections not taken below should not be allowed to be raised on appeal, particularly if they were not raised on the pleadings or in argument during the trial.

The court's final orders were that the application for leave to appeal against the interlocutory decision was refused. The appeal against the substantive judgment was deemed to have been discontinued, and the new arguments raised on appeal were not considered. Consequently, the appellant's application for leave to appeal was dismissed.