Agricultural and Rural Finance Pty Ltd v Kirk

Agricultural and Rural Finance Pty Ltd (the applicant) appealed to the Court of Appeal of New South Wales against an order of Einstein J setting aside the service of proceedings on the respondents. The primary dispute concerned the competency of the appeal brought as of right.

The court was required to determine whether the appeal brought as of right was competent, and if not, whether leave to appeal should be granted. The court also considered the criteria for dispensing with procedural requirements for seeking leave to appeal, including the filing of a summons and a white folder, and the treatment of an amended notice of motion as an application for leave.

Basten JA held that the appeal brought as of right was incompetent. The court applied the principles governing appeals as of right and the requirements for leave to appeal under the *Supreme Court Act 1970* (NSW) and the *Uniform Civil Procedure Rules 2005* (NSW). The court determined that the order setting aside service was not a final judgment, thus requiring leave to appeal. The court then granted the applicant leave to seek leave to appeal and set a timetable for the filing of submissions and amended notices of appeal.

The court ordered that the appeal brought as of right be dismissed as incompetent, but without prejudice to the applicant’s right to seek leave to appeal. The applicant was granted leave to file an amended draft notice of appeal and a timetable was set for the filing of written submissions. The applicant was ordered to pay the respondents’ costs of the objection to competency.