FEA special leave to appeal denied

The High Court dismissed the application by the Liquidators for special leave to appeal in the FEA case on Friday.

The applicants sought leave firstly on the question of whether the correct test had been applied by the Full Court of the Federal Court when deciding that there was no equitable set-off and secondly on whether the words ‘without any deduction whatsoever’ in a lease are sufficient to exclude an equitable set-off.  It was conceded that the second question only arose if leave was granted in relation to the first question.

The Full Federal Court had determined at paragraph [173]ff of the intermediate appeal decision that there was insufficient evidence before the primary judge to establish that there was an equitable set-off.  The High Court held that this was a factual determination, so declined leave to appeal on question 1.  As a result, the second question did not arise.

Consequently, the Full Court’s decision on whether the words ‘without any deduction whatsoever’ stands undisturbed.  For discussion on that decision, see the earlier post here.