Atkinson v Jeffery [2024] NSWCA 96

Atkinson v Jeffery [2024] NSWCA 96

The appeal was incompetent because leave to appeal was required under s 101(2)(r) of the Supreme Court Act 1970 (NSW) and had not been sought. Ms Atkinson had no monetary claim because the s 88K easement burdened Lot 133, owned by the Adams defendants, not her Lot 132; even if she had a compensation claim, the uncontested compensation evidence below was $825 plus GST, far below the $100,000 threshold; asserted changes in property values were irrelevant because the relevant value is the value of the claim, not the properties; and any costs liability could not be counted towards the threshold. The appellant had already failed to comply with directions to file a summons seeking leave, and...

Jurisdiction
Australia
Judgment Date
03 May 2024
Procedural Posture
Civil Appeal Concerning Easements, Rights of Carriageway and Appellate Competency / Court of Appeal Determination of Respondents' Notice of Motion to Dismiss the Appeal as Incompetent and Appellant's Notice of Motion Filed on 26 April 2024
Outcome
Leave was granted to read specified affidavit material; the appellant's notice of motion was otherwise dismissed; the appeal was dismissed as incompetent; and the appellant was ordered to pay the respondents' costs.
Legal Topics
['leave to Appeal' 'supreme Court Act 1970 (nsw) S 101(2)(r)' 'value of Matter at Issue' 'easement Under S 88 K of the Conveyancing Act 1919 (nsw)' 'compensation for Easement' 'costs Not Counted Towards Appeal Threshold' 'dismissal of Incompetent Appeal']
['civil Procedure' 'appellate Procedure' 'real Property' 'easements' 'costs'] ['leave to Appeal' 'supreme Court Act 1970 (nsw) S 101(2)(r)' 'value of Matter at Issue' 'easement Under S 88 K of the Conveyancing Act 1919 (nsw)' 'compensation for Easement' 'costs Not Counted Towards Appeal Threshold' 'dismissal of Incompetent Appeal']

Case Brief

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Procedural Posture

Civil Appeal Concerning Easements, Rights of Carriageway and Appellate Competency / Court of Appeal Determination of Respondents' Notice of Motion to Dismiss the Appeal as Incompetent and Appellant's Notice of Motion Filed on 26 April 2024

Legal Issues

  1. 1 ['Whether the appeal should be dismissed as incompetent because leave to appeal was required but not sought.' 'Whether s 101(2)(r) of the Supreme Court Act 1970 (NSW) required leave because the matter at issue was less than $100,000.' 'Whether Ms Atkinson could rely on alleged diminution in value of Lot 132 or increase in value of Lot 34 to meet the statutory threshold.' 'Whether Ms Atkinson was entitled to claim compensation under s 88K of the Conveyancing Act 1919 (NSW) for the easement burdening Lot 133.' 'Whether costs liability could be counted towards the $100,000 threshold.' 'Whether the appellant should be permitted to rely on further affidavit evidence or issue a subpoena.']

Ratio Decidendi

The appeal was incompetent because leave to appeal was required under s 101(2)(r) of the Supreme Court Act 1970 (NSW) and had not been sought. Ms Atkinson had no monetary claim because the s 88K easement burdened Lot 133, owned by the Adams defendants, not her Lot 132; even if she had a compensation claim, the uncontested compensation evidence below was $825 plus GST, far below the $100,000 threshold; asserted changes in property values were irrelevant because the relevant value is the value of the claim, not the properties; and any costs liability could not be counted towards the threshold. The appellant had already failed to comply with directions to file a summons seeking leave, and...

Court Disposition

Leave was granted to read specified affidavit material; the appellant's notice of motion was otherwise dismissed; the appeal was dismissed as incompetent; and the appellant was ordered to pay the respondents' costs.

Orders

  • ['Grant leave to the appellant to read: the affidavit of Michael Pung dated 10 April 2024; page 9 of the affidavit of Nicole Atkinson dated 24 April 2024; the affidavit of Ross Nimmo dated 26 April 2024; and the affidavit of Christopher Adamson dated 29 April 2024.' "Otherwise dismiss the appellant's notice of...