Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) [2014] NSWCA 89

Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) [2014] NSWCA 89

Costs at trial do not contribute to the calculation of the monetary threshold under s 101(2)(r) of the Supreme Court Act 1970 (NSW) for appeal as of right. Accordingly, as the amount at issue exclusive of costs did not exceed $100,000, no right of appeal existed and the notice of appeal was incompetent.

Jurisdiction
Australia
Judgment Date
01 April 2014
Procedural Posture
Interlocutory Application / Motion Objecting to Competency of Appeal
Outcome
Notice of appeal dismissed as incompetent; costs awarded to FDC Construction & Fitout Pty Ltd.
Legal Topics
['appeal Competency' 'leave to Appeal' 'double Appeals' 'statutory Construction of Appeal Rights' 'costs and Monetary Threshold']
['civil Procedure' 'appellate Law'] ['appeal Competency' 'leave to Appeal' 'double Appeals' 'statutory Construction of Appeal Rights' 'costs and Monetary Threshold']

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Procedural Posture

Interlocutory Application / Motion Objecting to Competency of Appeal

Legal Issues

  1. 1 ['Whether costs at trial contribute to the $100,000 threshold required for an appeal as of right under s 101(2)(r) of the Supreme Court Act 1970 (NSW)' 'Whether the notice of appeal is competent in circumstances where only costs raise the amount at issue above the statutory threshold']

Ratio Decidendi

Costs at trial do not contribute to the calculation of the monetary threshold under s 101(2)(r) of the Supreme Court Act 1970 (NSW) for appeal as of right. Accordingly, as the amount at issue exclusive of costs did not exceed $100,000, no right of appeal existed and the notice of appeal was incompetent.

Court Disposition

Notice of appeal dismissed as incompetent; costs awarded to FDC Construction & Fitout Pty Ltd.

Orders

  • ['Notice of appeal dismissed as incompetent.' "Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son to pay FDC Construction & Fitout Pty Ltd's costs of its notice of motion filed 28 January 2014."]