Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151

Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151

The appeal was wrongly commenced in the Court of Appeal as the decision appealed was interlocutory and not of the type for which an appeal lies to the Court of Appeal; accordingly, the proceedings should be remitted to the Common Law Division. Costs thrown away by commencing in the wrong forum are to be the respondents' costs on the appeal in the Common Law Division.

Parties
Applicant: Secure Funding Pty Ltd; Respondent: Jennifer Gloria Stark; Respondent: John Charles Stark; Respondent: Rex Anthony Conway
Jurisdiction
Australia
Judgment Date
15 May 2014
Procedural Posture
Appeal / Interlocutory Decision on Remitter and Costs
Outcome
Proceedings remitted to Common Law Division; costs thrown away to be respondents' costs on the appeal in the Common Law Division.
Legal Topics
Appeal Procedure, Remitter of Proceedings, Costs Thrown Away, Interlocutory Appeals
Civil Procedure Appeal Procedure Remitter of Proceedings Costs Thrown Away Interlocutory Appeals

Case Brief

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Parties

Secure Funding Pty Ltd

Applicant

Jennifer Gloria Stark

Respondent

John Charles Stark

Respondent

Rex Anthony Conway

Respondent

Procedural Posture

Appeal / Interlocutory Decision on Remitter and Costs

Legal Issues

  1. 1 Whether the appeal from an associate judge's interlocutory decision was correctly instituted in the Court of Appeal or should have been brought in the Common Law Division
  2. 2 Whether costs thrown away by incorrect commencement should be ordered

Ratio Decidendi

The appeal was wrongly commenced in the Court of Appeal as the decision appealed was interlocutory and not of the type for which an appeal lies to the Court of Appeal; accordingly, the proceedings should be remitted to the Common Law Division. Costs thrown away by commencing in the wrong forum are to be the respondents' costs on the appeal in the Common Law Division.

Court Disposition

Proceedings remitted to Common Law Division; costs thrown away to be respondents' costs on the appeal in the Common Law Division.

Orders

  • Remit Secure Funding Pty Ltd v Stark 2013/380356 and Secure Funding Pty Ltd v Conway 2013/380358 to the Common Law Division of the Supreme Court.
  • Respondents' costs thrown away by the commencement of proceedings in the Court of Appeal to be the respondents' costs on the appeal in the Common Law Division.