Pesec v Consolidated Builders Limited

The applicant, Mr. Pesec, sought leave to appeal from a decision of McWilliam AsJ of the Supreme Court of the Australian Capital Territory. McWilliam AsJ had dismissed Mr. Pesec's application for leave to bring proceedings on behalf of Consolidated Builders Limited (CBL) pursuant to section 237 of the *Corporations Act 2001* (Cth).

The primary legal issue before the Court of Appeal was whether the decision dismissing the application for leave under section 237 of the *Corporations Act* was an interlocutory or a final order. This determination was crucial because it dictated whether the applicant required leave from the Court of Appeal to pursue an appeal.

The court considered the precedent set in *McEvoy v Caplan* [2010] NSWCA 115, which held that a dismissal of an application for leave under section 237 is an interlocutory decision. This conclusion was based on High Court authorities, which establish that the classification of a judgment as interlocutory or final depends on its strict legal effect in finally determining the substantive rights of the parties, rather than its practical consequences. The applicant argued that the expiry of a limitation period meant the order was effectively final, but the court found no authority to suggest *McEvoy* was incorrect and proceeded on the assumption that the order was interlocutory.