AGRICULTURAL AND RURAL FINANCE PTY LTD v KIRK [2010] NSWCA 132

AGRICULTURAL AND RURAL FINANCE PTY LTD v KIRK [2010] NSWCA 132

Einstein J's orders discharging the extension of time for service and setting aside service did not determine the applicant's claims on their merits or set aside commencement of proceedings against the respondents; therefore they were interlocutory and leave to appeal was required. The appeal brought as of right was incompetent. A concurrent hearing of the leave application and appeal was appropriate because separate hearings were unlikely to save significant time, cost or delay and there was insufficient likelihood that leave would be refused.

Jurisdiction
Australia
Judgment Date
31 May 2010
Procedural Posture
Civil Appeal From Order Setting Aside Service / Objection to Competency and Directions for Application for Leave to Appeal
Outcome
Appeal brought as of right dismissed as incompetent; procedural directions made for the application for leave to appeal and concurrent appeal process; applicant ordered to pay respondents' costs of the objection to competency.
Legal Topics
['interlocutory Judgment' 'leave to Appeal' 'setting Aside Service' 'concurrent Hearing of Leave Application and Appeal' 'costs']
['civil Procedure' 'appeals'] ['interlocutory Judgment' 'leave to Appeal' 'setting Aside Service' 'concurrent Hearing of Leave Application and Appeal' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Appeal From Order Setting Aside Service / Objection to Competency and Directions for Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the appeal brought as of right was incompetent because the judgment of Einstein J setting aside service was interlocutory and required leave to appeal under Supreme Court Act 1970 (NSW), s 101(2)(e).' "Whether the expiry of a limitation period meant that the orders setting aside service finally disposed of the applicant's claims against the respondents." 'Whether the application for leave to appeal and the appeal should be heard concurrently.' "Who should pay the costs of the respondents' objection to competency."]

Ratio Decidendi

Einstein J's orders discharging the extension of time for service and setting aside service did not determine the applicant's claims on their merits or set aside commencement of proceedings against the respondents; therefore they were interlocutory and leave to appeal was required. The appeal brought as of right was incompetent. A concurrent hearing of the leave application and appeal was appropriate because separate hearings were unlikely to save significant time, cost or delay and there was insufficient likelihood that leave would be refused.

Court Disposition

Appeal brought as of right dismissed as incompetent; procedural directions made for the application for leave to appeal and concurrent appeal process; applicant ordered to pay respondents' costs of the objection to competency.

Orders

  • ["The appeal brought as of right is dismissed as incompetent, but without prejudice to the applicant's right to seek leave to appeal from the judgment of Einstein J setting aside service of the proceedings on the respondents." 'Dispense with the requirement for the filing of a summons to seek leave to appeal,...