Coshott v Vardas [2017] NSWCA 258

Coshott v Vardas [2017] NSWCA 258

The appeal was incompetent because the appellants failed to establish by affidavit or other evidence that the matter at issue in the appeal amounted to or exceeded $100,000 as required for an appeal as of right. The affidavit merely asserted a $210,000 costs assessment claim and did not disclose material facts showing that the recoverable costs of the leave-to-amend motion approached the statutory threshold; the incomplete account did not permit apportionment between that motion and other interlocutory matters. Because the appellants declined to seek leave, the appeal had to be dismissed. The respondent was not awarded costs because the competency motion was filed well outside the 28-day...

Jurisdiction
Australia
Judgment Date
16 October 2017
Procedural Posture
Appeal to the Court of Appeal From a Decision of the Supreme Court of New South Wales, Equity Division / Respondent's Motion Objecting to Competency of the Appeal; Reasons and Costs After Order Dismissing Appeal as Incompetent
Outcome
Appeal dismissed as incompetent; no order as to the costs of the appeal, including the competency motion.
Legal Topics
['competency of Appeal' 'appeal as of Right Restricted by Monetary Amount' 'affidavit Under UCPR R 51.22' 'costs Where Competency Objection Filed Out of Time' 'deed of Release and Costs Assessment']
['civil Procedure' 'appeals' 'costs'] ['competency of Appeal' 'appeal as of Right Restricted by Monetary Amount' 'affidavit Under UCPR R 51.22' 'costs Where Competency Objection Filed Out of Time' 'deed of Release and Costs Assessment']

Case Brief

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Procedural Posture

Appeal to the Court of Appeal From a Decision of the Supreme Court of New South Wales, Equity Division / Respondent's Motion Objecting to Competency of the Appeal; Reasons and Costs After Order Dismissing Appeal as Incompetent

Legal Issues

  1. 1 ["Whether the appellants' affidavit complied with Uniform Civil Procedure Rules 2005 (NSW), r 51.22 by setting out material facts showing that the appeal involved a matter to the value of $100,000 or more." 'Whether the appeal was incompetent because leave was required under Supreme Court Act 1970 (NSW), s 101(2)(r) and the appellants declined to seek leave.' 'Whether the respondent was entitled to costs of the appeal despite failing to file an objection to competency within the time specified by UCPR r 51.41(1).']

Ratio Decidendi

The appeal was incompetent because the appellants failed to establish by affidavit or other evidence that the matter at issue in the appeal amounted to or exceeded $100,000 as required for an appeal as of right. The affidavit merely asserted a $210,000 costs assessment claim and did not disclose material facts showing that the recoverable costs of the leave-to-amend motion approached the statutory threshold; the incomplete account did not permit apportionment between that motion and other interlocutory matters. Because the appellants declined to seek leave, the appeal had to be dismissed. The respondent was not awarded costs because the competency motion was filed well outside the 28-day...

Court Disposition

Appeal dismissed as incompetent; no order as to the costs of the appeal, including the competency motion.

Orders

  • ['Dismiss appeal as incompetent.' 'No order as to the costs of the appeal (including the competency motion).']