Mohareb v Kelso (No 2)

Mohareb (the applicant) sought to vary an earlier order of the Court of Appeal of New South Wales which had refused him leave to appeal. The respondent was Kelso. The application sought, in effect, to substitute a grant of leave to appeal for the previous refusal.

The primary legal issue before the court was whether there were sufficient grounds to revisit and alter the previous decision refusing leave to appeal. A secondary issue concerned an application to vary the costs order made against the applicant, which had directed him to pay the respondent's costs.

The court determined that the application to vary the order refusing leave to appeal was, in substance, an attempt to re-open the hearing of the application for leave. The court found no change in circumstances since the original decision, nor any indication that the court had misunderstood the applicant's case at the time of the initial refusal. Consequently, there was no sufficient basis to grant the application to vary the order refusing leave. Similarly, the court found no sufficient basis to vary the costs order made against the applicant.

The court ordered that the notice of motion filed by the applicant be dismissed, and made no order as to the costs of the motion.