Atkinson v Jeffery

[2024] NSWCA 96

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Atkinson v Jeffery [2024] NSWCA 96

Hearing dates:

29 April 2024

Decision date:

03 May 2024

Before:

Adamson JA

Decision:

(1)   Grant leave to the appellant to read:

(a)   the affidavit of Michael Pung dated 10 April 2024;

(b)   page 9 of the affidavit of Nicole Atkinson dated 24 April 2024;

(c)   the affidavit of Ross Nimmo dated 26 April 2024; and

(d)   the affidavit of Christopher Adamson dated 29 April 2024.

(2)   Otherwise dismiss the appellant’s notice of motion filed on 26 April 2024.

(3)   Dismiss the appeal as incompetent.

(4)   Order the appellant to pay the respondents’ costs of the appeal, including the costs of the appellant’s notice of motion filed on 26 April 2024 and the costs of the respondent’s notice of motion filed on 4 March 2024.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — whether appeal should be dismissed as incompetent where leave to appeal not sought — whether leave to appeal was required — Supreme Court Act 1970 (NSW) s 101(2)(r) — whether value of matter in issue was less than $100,000 — where evidence of quantum of compensation not controverted at first instance — where appellant not entitled to claim compensation in respect of easement — where costs order does not count towards s 101(2)(r) threshold

Legislation Cited:

Conveyancing Act 1919 (NSW), s 88K

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Condensing Vaporisers Aust Pty Ltd t/as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89

Jardin v Metcash Ltd [2011] NSWCA 409; (2011) 285 ALR 677

Jeffery v Adams [2023] NSWSC 1270

Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299

Maynes v Casey [2011] NSWCA 156

Re Felicity; Director-General, Family and Community Services [2012] NSWCA 272

Sidoti v Hardy (2021) 105 NSWLR 1; [2021] NSWCA 105

Category:

Principal judgment

Parties:

Nicole Atkinson (Appellant)
Trevor Stanley Jeffery (First Respondent)
Dina Loraine Jeffery (Second Respondent)

Representation:

Counsel:
Mr C M Adamson, Solicitor (Appellant)
T Alexis SC / B Michael (Respondents)

Solicitors:
Paclaw Lawyers (Appellant)
Hones Lawyers (Respondents)

File Number(s):

2023/361086

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity – Real Property List

Citation:

Jeffery v Adams [2023] NSWSC 1270

Date of Decision:

27 October 2023

Before:

Peden J

File Number(s):

2021/257029

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 25 January 2024, the appellant (the fourth defendant in the Court below), Nicole Atkinson filed a notice of appeal from the orders of Peden J (the primary judge) made on 27 October 2023. The first, second and third defendants (the Adams defendants) in the Court below were not parties to the appeal.

The proceedings in the court below concerned the enforcement of certain rights of way over land owned by the Adams defendants (Lot 133) and Ms Atkinson (Lot 132) by the Jefferys, registered proprietors of Lot 34 which abutted Lot 133. The Jefferys sought to enforce two existing registered rights of carriageway against the Adams defendants and applied for an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW). Peden J made orders imposing the s 88K easement and requiring the Jefferys pay the Adams defendants $825 plus GST by way of compensation. Her Honour also granted injunctive relief to stop Ms Atkinson preventing the Jefferys from using the right of carriageway which passed through Lot 132.

By notice of motion filed on 4 March 2024 (the Jefferys notice of motion), Trevor and Dina Jefferys, the respondents to the appeal, sought that the appeal be dismissed as incompetent on the basis that Ms Atkinson had not sought leave to appeal which was required as the value of the matter at issue was less than $100,000.

Ms Atkinson, by way of notice of motion filed on 26 April 2024 (the Atkinson notice of motion), also sought orders setting aside an order of the Registrar made on 22 April 2024 which required Ms Atkinson to file and serve a summons seeking leave to appeal by 26 April 2024 and granting leave to rely on several affidavits at the hearing of the motions.

Adamson JA held, allowing the Jefferys notice of motion, dismissing the Atkinson notice of motion (but granting leave to read certain affidavits) and dismissing the appeal as incompetent:

The Jefferys notice of motion

1. Ms Atkinson had no claim for a monetary amount, since it was the Adams defendants whose land was burdened by the s 88K easement: at [30].

   Maynes v Casey [2011] NSWCA 156; Jardin v Metcash Ltd [2011] NSWCA 409; (2011) 285 ALR 677; Re Felicity; Director-General, Family and Community Services [2012] NSWCA 272 applied.

2. Even if Ms Atkinson did have a claim for compensation, she did not, in the Court below, controvert the quantum of compensation of $825 plus GST advanced by the Jefferys, which falls far short of the $100,000 threshold: at [31].

3. Any liability Ms Atkinson has for costs does not obviate the requirement for leave, even if this is in excess of $100,000, as costs do not count towards the threshold: at [32].

   Condensing Vaporisers Aust Pty Ltd t/as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 applied.

The Atkinson notice of motion

1. Ms Atkinson was given two opportunities to file a summons for leave to appeal and failed to comply with such directions. It is not appropriate to further extend the time to do so in circumstances where the appeal ought be dismissed as incompetent: at [38].

JUDGMENT

Introduction

1. On 25 January 2024, the appellant, Nicole Atkinson (who was the fourth defendant in the Court below), filed a notice of appeal from the orders of Peden J (the primary judge) made on 27 October 2023: Jeffery v Adams [2023] NSWSC 1270. The respondents to the appeal, Trevor and Dina Jeffery (the Jefferys), were the plaintiffs in the Court below. Ronald, Kay and Edward Adams (the Adams defendants), the first, second and third defendants respectively in the Court below, are not parties to the appeal.

2. By notice of motion filed on 4 March 2024, the Jefferys sought that the appeal be dismissed as incompetent on the basis that Ms Atkinson had not sought leave to appeal. The Jefferys submitted that leave was required in respect of grounds 1-9 and 12-13 as the value of the matter at issue was less than $100,000 (s 101(2)(r) of the Supreme Court Act 1970 (NSW) (the Act)). It is not necessary to address grounds 10 or 11 as they are no longer pressed.

3. In the alternative, the Jefferys sought orders that each of the grounds of appeal be struck out on various bases, including that Ms Atkinson lacked standing, the ground had no prospects of success, that the ground was an abuse of process, that the ground challenged an interlocutory order, or that the ground had no utility in that the work ordered to be undertaken had been completed. Because of my view that the appeal is incompetent, there is no need to address the alternative application.

The proceedings in the Court below

4. The Jefferys are the registered proprietors of land at South Boambee in New South Wales known as Lot 34. Lot 34 abuts Lot 133, of which the Adams defendants are registered proprietors. Lot 133 abuts Lot 132 of which Ms Atkinson is the registered proprietor. Ronald and Kay Adams are the parents of Edward Adams and Ms Atkinson. Mr Adamson, solicitor, appeared for the Adams defendants and Ms Atkinson in the Court below and appeared for Ms Atkinson in this Court. Mr Alexis SC appeared with Mr Michael for the Jefferys in the Court below and in this Court.

5. In the Court below, the Jefferys sought to enforce certain rights of way over Lots 133 and 132 which afforded them access to Boambee Road from Lot 34 (which was otherwise land-locked) and access to a paddock at the top of their property. There were two registered rights of carriageway (ROC). The first ROC derived from a Deed of Licence and passed, for a short stretch, through Lot 132 but predominantly passed through Lot 133. It connected the lower part of Lot 34 (where the Jefferys’ house was located) to the paddock at the top of the hill. The second ROC passed exclusively through Lot 133 and intersected with the first ROC. Only the second ROC allowed for carriage to the Boambee Road.

6. As a dam had been built over part of the first ROC, the Jefferys had used, with the acquiescence of the Adams defendants, an unregistered ROC which was referred to as “K” and marked as such on a survey (ROC K). ROC K comprised a loop which circumvented the dam on Lot 133 and joined the first ROC with the second ROC. There was already an existing easement along ROC K in favour of Transgrid and Ms Atkinson (as it was her means of access to Lot 132). There was also an Access Track on Lot 133. The first and second ROCs, ROC K, the Access Track and the respective lots are depicted in the survey diagram, which was reproduced at [12] of the reasons of the primary judge and is reproduced below.

7. In the Court below, the Jefferys sought to enforce, as against the Adams defendants, the first and second ROCs and the Access Track. They also applied for an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) along ROC K on Lot 133. They sought associated declaratory and injunctive relief, including to stop Ms Atkinson preventing them from using the first ROC to pass through Lot 132.

8. The Adams defendants filed a cross-claim seeking damages for trespass, which was dismissed (see the orders below).

The primary judge’s reasons and orders

9. The primary judge identified the issues to be determined at [34] as follows:

“(1) Are the plaintiffs entitled to use the Alternative Road [ROC K] around the dam to access the First ROC, either by the creation of a s 88K easement, or other legal right? If so, are the defendants entitled to any compensation?

(2)   Ought the plaintiffs instead use alternative routes proposed by the defendants described as “Proposed easement 1” and “Proposed easement 2”?

(3)   Is the Deed enforceable and ought injunctive relief preventing its breach be granted?

(4)   Has Ms Atkinson substantially interfered with the First ROC, and, if so, ought orders be made requiring the removal or alteration of gates?

(5)   Ought the plaintiffs be entitled to carry out work on the First ROC?”

10. The primary judge addressed the issue of compensation as follows:

“Adequate compensation – s 88K(2)(b)

91 If the owner of the burdened land can be adequately compensated, and the Court is minded to grant the proposed easement, the Court is required by s 88K(4) to order the compensation it considers appropriate.

92 Compensation under s 88K often has three elements: (a) the diminished market value of the burdened land; (b) associated costs that would be caused to the owner of that land; and (c) if relevant, compensation for insecurity and loss of amenities: see eg Mulder at [49].

93   The plaintiffs’ expert valuer, Mr Grahame Hollinshead, considered each of those elements and concluded that an appropriate amount of compensation for the imposition of an easement over the Alternative Road would be $825 plus GST. Mr Hollinshead’s reasoning is sound, he was not required for cross-examination and there is no contrary valuation evidence. Further, the defendants did not submit that his evidence ought not be accepted, nor that a different amount of compensation was appropriate.

94   I accept that the appropriate amount of compensation is $825 plus GST.

95   For completeness, I reject Mr Adamson’s oral submission that somehow added to that figure ought to be the value of unspecified and unvalued improvements the defendants had made on the First ROC. There is no principled basis for that submission.”

11. The primary judge, in substance, granted the relief claimed by the Jefferys and made the following orders:

“(1) An order imposing an easement for a right of carriageway 10 metres wide pursuant to section 88K Conveyancing Act 1919 (NSW) benefitting Lot 34 … burdening Lot 133 … over the existing access road around the dam on Lot 133 in the same location as the right of carriageway that benefits Lot 132 … and denoted “K” in DP XXX (First ROC):

(a)   Commencing at the right of carriageway created by DP [XXX] which benefits Lot 34 and burdens Lot 133; and

(b)   Ending at the intersection between the aforementioned right of carriageway denoted “K” in DP [XXX] and the First ROC.

(2)   The plaintiffs are to pay the first, second and third defendants as the registered proprietors of Lot 133 the sum of $825 plus GST by way of compensation for the easement.

(3)   A declaration that the wire fence on Lot 133 erected approximately perpendicular to the northern boundary of Lot 34 prevented the plaintiffs’ use and enjoyment of the “Access Road” within the meaning of the Deed of Licence dated 1 August 2005 (Deed) and was in breach of that Deed of Licence.

(4)   The first and second defendants by themselves and their agents be restrained from erecting another fence in place of the wire fence or otherwise interfering with or obstructing the plaintiffs’ rights to use the access roads pursuant to the Deed of Licence.

(5)   A declaration that the Lot 132 wire fences and the new gates (as defined in the Second Further Amended Statement of Claim) constitute a nuisance which substantially interferes with the plaintiffs’ ordinary use and enjoyment of the First ROC.

(6)   An order that the fourth defendant either remove the gates and wire fences in Lot 132 that have been found to be a nuisance, or install gates in Lot 132 and wire fences on the First ROC on Lot 132 which open to provide an entrance width of no less than 6 metres to enable the plaintiffs to pass and repass through Lot 132 wire fences without needing to deviate from the First ROC.

(7)   A declaration that the plaintiffs have the right to carry out reasonable work on the land on which the First ROC is situated, in particular on the First ROC on Lot 132 to render that land fit for vehicular use, including levelling and grading work at their own expense, without the consent of the fourth defendant.

(8)   Grant liberty to the plaintiffs and fourth defendant to apply in relation to the operation of order 7 on 3 days’ notice to the Associate to the Real Property List Judge setting out the relief sought.

(9)   Cross-claim dismissed.

(10)   Defendants to pay the plaintiffs’ costs on the ordinary basis as agreed or assessed.”

12. The easement granted in order (1) will be referred to as the s 88K easement.

The procedural history in this Court

13. As referred to above, Ms Atkinson filed her notice of appeal on 25 January 2024. The appeal was listed before the Registrar for directions on 21 February 2024. On that day, the Jefferys contended that the appeal was incompetent as leave to appeal was required and had not been sought. Accordingly, the Registrar directed the Jefferys to file a notice of motion for dismissal together with any affidavit evidence and submissions relied on in support by 4 March 2024.

The Jefferys motion for dismissal of the appeal

14. On 4 March 2024, the Jefferys filed the notice of motion for dismissal (the Jefferys motion), an affidavit and written submissions. The matter came back before the Registrar for directions on 18 March 2024. The Registrar made the following directions:

“1   The Appellant is to file and serve a Summons seeking leave to appeal as well as a white folder by 8th April 2024.

2   The filing fee for the Summons seeking leave to appeal is waived.

3   Stood over to directions at 2:30 PM on 13th May 2024

4   The Appellant is to pay the Respondents cost of today's directions hearing.

5   The cost of the incidental to the Notice of Motion filed 4th March 2024 are reserved.”

15. Ms Atkinson did not comply with the first order made by the Registrar. When the matter came back before the Registrar on 22 April 2024, the Registrar made the following orders:

“1   The time for the Appellant to file and serve a Summons seeking Leave to Appeal as well as a White Folder is extended to 26 April 2024.

2   The Appellant is to file and serve any Notice of Motion and Affidavit in support seeking leave to issue Subpoenas by 26 April 2024.

3   The Notice of Appeal and the Notice of Motion filed 4 March 2024, as well as any Notice of Motion filed in accordance with order 2, are to be listed for Directions Hearing at 9am on 29 April 2024.

4   The Appellant is to pay the Respondents' costs of and incidental to today's Directions Hearing.”

The Atkinson motion

16. On 26 April 2024, Ms Atkinson filed a notice of motion (the Atkinson motion) seeking orders setting aside order (1) made by the Registrar on 22 April 2024; and that leave be granted to issue a subpoena to Peter Hawkes, surveyor, in the form of an annexed draft.

17. She also applied for leave to rely on the following affidavits at the hearing of the Jefferys motion and the Atkinson motion:

1. the affidavit of Michael Pung dated 10 April 2024;

2. the affidavit of Ms Atkinson dated 24 April 2024;

3. the affidavit of Ross Nimmo, civil engineer, dated 26 April 2024;

4. paragraphs 45 and 46 of the affidavit of Jacob Jeffery affirmed on 12 May 2023 (which was read at first instance) in which he deposed to the need for resurfacing works over the first ROC on Lot 132; and

5. the affidavit of Christopher Adamson (Ms Atkinson’s solicitor) dated 29 April 2024. Mr Adamson’s affidavit annexed a draft amended notice of appeal.

18. Mr Adamson sought to read the affidavits identified in the Atkinson motion in support of the Atkinson motion and in opposition to the Jefferys motion. Mr Alexis SC objected to the affidavits of Mr Pung, Mr Nimmo and Ms Atkinson (apart from page 9) on the grounds of relevance but accepted that the most efficient course would be for me to read the affidavits and rule on their admissibility in the reasons for decision.

19. Mr Adamson also made an oral application for leave to amend the notice of appeal in accordance with the draft amended notice of appeal.

Relevant statutory provisions

20. Section 101(2) of the Act provides that leave to appeal is required from:

“(r)     a final judgment or order in proceedings of the Court, other than an appeal—

(i)     that involves a matter at issue amounting to or of the value of $100,000 or more, or

(ii)     that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.”

21. Section 88K of the Conveyancing Act relevantly provides:

“88K   Power of Court to create easements

(1)     The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.

(2)     Such an order may be made only if the Court is satisfied that—

(a)     use of the land having the benefit of the easement will not be inconsistent with the public interest, and

(b)     the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and

(c)     all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

(3)     The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)–(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.

(4)     The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.

…

(8)     An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed.

…”

Consideration

22. I propose to address the Jefferys motion for dismissal first. This will inevitably require aspects of the Atkinson motion to be addressed, including whether leave ought be granted to rely on the affidavit evidence identified above.

23. The first basis for dismissal is that the appeal is incompetent as leave is required by reason of s 101(2)(r) of the Act and has not been sought.

24. Mr Adamson submitted that leave to appeal was not required as the matter at issue amounted to $100,000 or more and involved, directly or indirectly, a claim respecting property amounting to the value of $100,000 or more. He contended that these thresholds were met on the following bases:

1. orders (1), (3) and (4) made by the primary judge would “likely” increase the value of Lot 34 by more than $100,000 and would, directly or indirectly, decrease the value of Lot 132 by $135,000;

2. if the s 88K easement was properly granted, Ms Atkinson was entitled, as a person having an interest in the land burdened by the easement, to compensation under s 88K(4) of the Conveyancing Act in excess of $100,000; and

3. the costs for which Ms Atkinson was jointly and severally liable to pay to the Jefferys would be likely to be in excess of $100,000.

25. Mr Adamson relied on the affidavit of Mr Pung dated 10 April 2024 in which the deponent carried out a “desk-top” valuation of Lot 34 (the Jefferys property) and Lot 132 (Ms Atkinson’s property). Mr Pung opined that:

1. the value of Lot 34 with the benefit of the s 88K easement would be $1.25m and without the benefit of the s 88K easement would be $1.125m (that is, a difference of $125,000); and

2. the difference the s 88K easement made to the value of Ms Atkinson’s property was $135,000.

26. There are several difficulties with this submission. First, it was not run in the Court below. In other words, Ms Atkinson did not submit that she was entitled to compensation for the s 88K easement or that any such compensation ought be in the sum of $125,000 or $135,000. In the Court below, as the primary judge recorded at [93], the evidence of Mr Hollinshead, the expert valuer for the Jefferys, that compensation in the sum of $825 plus GST was appropriate was not controverted: that is, no opposing evidence was adduced and he was not cross-examined. Further, as is evident from the primary judge’s order (2), the parties who were entitled to compensation were the registered proprietors of Lot 133, the land burdened by the s 88K easement, being the Adams defendants. As Ms Atkinson had no interest in the land burdened by the s 88K easement and her land, Lot 132, was not burdened by the easement, there was no basis on which she could claim compensation under s 88K of the Conveyancing Act for the s 88K easement.

27. In addition, the evidence of Mr Pung was not “fresh” as there was no evidence to indicate that it could not have been obtained prior to the hearing in the Court below. It is apparent on its face that the evidence was obtained for the purposes of the leave application. So much is confirmed by Mr Adamson’s letter of instruction to Mr Pung which said, in part:

“YOUR INSTRUCTIONS

There are two separate valuations required in relation to the following properties.

1.   Lot 132 DP1042485 owned by my client (the Lot 132 Valuation); and

2.   Lot 34 DP595376 owned by the Jefferys (the lot 34 Valuation).

1. THE LOT 132 VALUATION

Part 1

As is apparent from the title of these instructions, my client is appealing a judgment of the Supreme Court.

In the proceedings appealed from there was no valuations being appealed from and these valuations are needed only for leave to appeal other findings of the judgment.

Under s 101(1)(r) of the Supreme Court Act 1970, leave is required for my client to appeal. If the matter or question involved is valued less than $100,000.00.

My client now requests that you give your expert opinion whether or not the value of my client’s property and its improvements is diminished by at least $100,000 by the order granting the Respondents a s 88K easement as described below in all the circumstances.

…”

28. Finally, Mr Pung’s evidence of the difference the s 88K easement made to the value of Lots 34 and 132 was irrelevant, having regard to Sidoti v Hardy (2021) 105 NSWLR 1; [2021] NSWCA 105 in which Brereton JA at [172] confirmed that it was the value of the claim not the value of the property to which the claim related which was required to be worth $100,000 or more.

29. Section 101(2)(r) of the Act operates as a statutory restriction on the right to appeal: Maynes v Casey [2011] NSWCA 156 at [7] (Basten JA, Allsop P agreeing). The factor which determines whether leave is required is the value of the “matter at issue” in the appeal: Jardin v Metcash Ltd [2011] NSWCA 409; (2011) 285 ALR 677 at [20] (Campbell JA, Young and Meagher JJA agreeing). Where, as here, there is no claim for damages and no property or civil right involved that has the requisite value or is capable of being so valued, leave is required as the value of the matter at issue cannot be shown to be $100,000 or greater: see the cases referred to in Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [21] (Bell P, Meagher and Leeming JJA agreeing). As Barrett JA said in Re Felicity; Director-General, Family and Community Services [2012] NSWCA 272 at [17]:

“The absence or lack of monetary amount or monetary value does not cause the s 101(2) barrier to be neutralised. It causes the barrier to operate.”

30. Ms Atkinson had no claim for a monetary amount at all, since it was the Adams defendants whose land was to be burdened by the s 88K easement (thereby entitling them to compensation) and the Adams defendants who filed a cross-claim seeking damages for trespass.

31. However, even if it was arguable that Ms Atkinson did have a claim for compensation notwithstanding that her land (Lot 132) was not burdened by the s 88K easement, she did not, in the Court below, controvert the quantum advanced by the Jefferys of $825 plus GST, which falls far short of the threshold in s 101(2)(r) of the Act. Further, it is plain from Mr Adamson’s instructions to Mr Pung that the evidence of valuation sought was solely for the leave application and not for the appeal itself.

32. Finally, even if Ms Atkinson’s liability for costs was capable of being quantified in excess of $100,000, this does not obviate the requirement for leave as costs do not count towards the threshold: Condensing Vaporisers Aust Pty Ltd t/as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 at [22]-[28] (Leeming JA, Macfarlan and Ward JJA agreeing).

Conclusion on the Jefferys motion

33. As the Jefferys have succeeded on their primary submission that the appeal is incompetent because leave is required and has not been sought, it is not necessary to address their alternative submission that the grounds of appeal ought be struck out.

The Atkinson motion and the oral application to amend the notice of appeal

34. The draft amended notice of appeal does not raise any further claim that could bear on the question whether the threshold in s 101(2)(r) of the Act has been met. However, it is necessary to address the following ground 3A which is sought to be added by the amendment:

“Court’s breach of its Duty of Care

3A   3A.1 In preparing for and conducting the view of the Handle [the steep path which connected the Jefferys’ property on Lot 34 to their upper paddock] on foot, the Court breached its duty of care to the Defendants legal representative to conduct the view safely with regard to the age and health of the Defendant’s legal representative and other participants, and as a result impaired the ability of the Defendants legal [sic] to properly represent the Defendants during the view and on the next day of the hearing.”

35. In oral submissions, Mr Adamson expanded on this ground by submitting that his arthritis, which had been asymptomatic, or at least not painful, had become symptomatic and painful following the view. He did not elaborate on how this matter affected the value of Ms Atkinson’s claim in the appeal or how it would assist her to exceed the threshold in s 101(2)(r) of the Act, save to allege that there had been a denial of procedural fairness as a result of his personal infirmity. This matter does not assist in meeting the threshold requirement in s 101(2)(r) of the Act.

36. In these circumstances, it is not necessary to address Ms Atkinson’s application for leave to amend her notice of appeal as the proceedings are incompetent on the basis of the filed notice of appeal and would be if the draft amended notice of appeal were the operative initiating process.

37. Ms Atkinson’s application for leave to issue a subpoena is futile because a subpoena to the surveyor is not capable of affecting the competency of the appeal in the present case.

38. Ms Atkinson also challenged (by seeking to set aside or vary) the order made by the Registrar on 22 April 2024 requiring her to file and serve a summons for leave to appeal and a white folder by 26 April 2024. Mr Adamson submitted that it was erroneous for the Registrar to make such a direction in circumstances where Ms Atkinson contended that leave was not required. The appeal ought be dismissed as incompetent as Ms Atkinson has already been given two opportunities to file a summons for leave to appeal and a white folder and has, on both occasions, failed to comply with directions to do so, as well as maintaining, through Mr Adamson, that leave was not required. I am not satisfied that it would be appropriate merely to further extend the time to file a summons for leave to appeal and a white folder.

39. The balance of the Atkinson motion related to applications for leave to adduce evidence. As referred to above, Mr Alexis objected only to Mr Pung’s and Mr Nimmo’s affidavits. Mr Pung’s evidence ultimately proved to be irrelevant but ought be admitted on these applications as it was capable of being relevant and was required to be considered in order to address Mr Adamson’s argument. Mr Nimmo’s affidavit proved to be irrelevant because it was not necessary to address the Jefferys’ alternative basis for their notice of motion. However, as I considered it in order to appreciate Mr Adamson’s argument (which did not need to be addressed), it ought be admitted as relevant. Objection was also taken to Ms Atkinson’s affidavit of 24 April 2024 on the grounds of relevance. I admit page 9 of the affidavit, which comprises a survey as reference was made to it in the course of the hearing.

40. The Jefferys motion was filed in a timely way and brought to the Court’s attention the lack of competency of the appeal. The parties confirmed at the conclusion of the hearing that there is no reason why costs ought not follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Orders

41. For the reasons given above, I make the following orders:

1. Grant leave to the appellant to read:

1. the affidavit of Michael Pung dated 10 April 2024;

2. page 9 of the affidavit of Nicole Atkinson dated 24 April 2024;

3. the affidavit of Ross Nimmo dated 26 April 2024; and

4. the affidavit of Christopher Adamson dated 29 April 2024.

2. Otherwise dismiss the appellant’s notice of motion filed on 26 April 2024.

3. Dismiss the appeal as incompetent.

4. Order the appellant to pay the respondents’ costs of the appeal, including the costs of the appellant’s notice of motion filed on 26 April 2024 and the costs of the respondent’s notice of motion filed on 4 March 2024.

**********

Decision last updated: 03 May 2024