Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Atkinson v Jeffery [2024] NSWCA 149 Hearing dates: 6 June 2024 Date of orders: 14 June 2024 Decision date: 14 June 2024 Before: Ward P; Meagher JA; Stern JA Decision: In proceedings 2024/162618
1. Dismiss the applicant Ms Atkinson’s Summons Seeking Leave to Appeal from the judgment of Peden J on 27 October 2023.
2. Order that the applicant pay the respondents’ (the Jefferys) costs of that Summons.
In proceedings 2023/361086
1. Dismiss the applicant Ms Atkinson’s Notice of Motion filed 29 May 2024 seeking to set aside the orders made by Adamson JA on 3 May 2024.
2. Order that the applicant pay the respondents’ (the Jefferys) costs of that Motion.
Catchwords: APPEALS – leave to appeal – where none of proposed grounds identifies arguable error and no issue of principle or question of public importance – leave refused
APPEALS – practice and procedure – appeal dismissed by judge of appeal as “incompetent” – application for review under Supreme Court Act 1970 (NSW), s 46(4) – where applicant had sought to file summons seeking leave to appeal but did not make judge aware of that fact – order dismissing appeal not “plainly wrong” on facts as disclosed – no utility in setting aside order where no material difference between notice of appeal dismissed as “incompetent” and proposed appeal for which leave refused
Legislation Cited: Conveyancing Act 1919 (NSW), ss 88K, 89
Supreme Court Act 1970 (NSW), ss 46(4), 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.4
Cases Cited: Atkinson v Jeffery [2024] NSWCA 96
Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343
Owners of Strata Plan 48754 v Anderson [1999] NSWSC 580
Pieper v Edwards [1982] 1 NSWLR 336
Texts Cited: P Butt, Land Law (5th ed, 2006, Lawbook Co)
Category: Principal judgment Parties: Nicole Atkinson (Applicant)
Trevor Jeffery (First Respondent)
Dina Jeffery (Second Respondent)Representation: Counsel:
Solicitors:
C Adamson (solicitor) (Applicant)
B Michael (Respondents)
C Adamson (Applicant)
Hones Lawyers (Respondents)
File Number(s): 2024/162618; 2023/361086 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity
- Citation:
- Date of Decision:
- 27 October 2023
- Before:
- Peden J
- File Number(s):
- 2021/257029
JUDGMENT
-
THE COURT: On 27 October 2023, the primary judge (Peden J) made orders resolving disputes concerning the operation of two rights of carriageway affecting neighbouring properties in South Boambee, New South Wales (Jeffery v Adams [2023] NSWSC 1270). The parties in dispute were Trevor and Dina Jeffery as owners of Lot 34 in DP 595376 (the Jefferys), on the one hand, and the owners of Lot 133 in DP 1042485 (the first, second and third defendants, together the Adams Defendants) and the…
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- AGLC
- Atkinson v Jeffery [2024] NSWCA 149
- Case
- [2024] NSWCA 149
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether any of Ms Atkinson's proposed grounds of appeal disclosed an arguable error of law or fact, or raised an issue of principle or public importance that warranted the grant of leave to appeal. Additionally, the Court had to consider whether the order dismissing the appeal as incompetent was plainly wrong, and if there was any utility in setting aside that order.
The Court found that none of the proposed grounds of appeal identified an arguable error, nor did they raise any issue of principle or public importance. Regarding the earlier dismissal of the appeal as incompetent, the Court noted that Ms Atkinson had sought to file a summons seeking leave to appeal but had not brought this to the attention of Adamson JA. The Court concluded that the order dismissing the appeal was not plainly wrong on the facts then disclosed, and that there would be no material difference between the dismissed "incompetent" appeal and the proposed appeal for which leave was refused. Consequently, the Court dismissed Ms Atkinson's summons seeking leave to appeal and her notice of motion seeking to set aside the earlier order.
Orders
Orders of the court
In proceedings 2024/162618
1. Dismiss the applicant Ms Atkinson’s Summons Seeking Leave to Appeal from the judgment of Peden J on 27 October 2023.
2. Order that the applicant pay the respondents’ (the Jefferys) costs of that Summons.
In proceedings 2023/361086
1. Dismiss the applicant Ms Atkinson’s Notice of Motion filed 29 May 2024 seeking to set aside the orders made by Adamson JA on 3 May 2024.
2. Order that the applicant pay the respondents’ (the Jefferys) costs of that Motion.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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