Atkinson v Jeffery

Case [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…

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AGLC
Atkinson v Jeffery [2024] NSWCA 96
Case
[2024] NSWCA 96
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Atkinson, and the respondents, Jeffery, heard in the Court of Appeal of New South Wales. The central issue was the competence of the appeal, specifically whether leave to appeal was required under section 101(2)(r) of the *Supreme Court Act 1970* (NSW) due to the value of the matter in issue being less than $100,000.

The Court of Appeal was required to determine whether leave to appeal was necessary. This involved assessing whether the value of the matter in issue fell below the statutory threshold. Crucially, the court had to consider whether the appellant was entitled to claim compensation in respect of an easement, and whether the quantum of compensation, not controverted at first instance, could be considered in determining the value for the purposes of section 101(2)(r). The court also had to decide whether a costs order made at first instance counted towards this monetary threshold.

Adamson JA reasoned that the appellant was not entitled to claim compensation in respect of the easement, and therefore, the value of the matter in issue was less than $100,000. Consequently, leave to appeal was required under section 101(2)(r) of the *Supreme Court Act 1970* (NSW). The court found that the evidence of the quantum of compensation was not controverted at first instance, but this did not alter the fact that the appellant was not entitled to claim such compensation. Furthermore, the court held that a costs order does not count towards the threshold specified in section 101(2)(r).

The Court of Appeal granted the appellant leave to read certain affidavits. However, the appellant's notice of motion was otherwise dismissed, and the appeal itself was dismissed as incompetent. The appellant was ordered to pay the respondents' costs of the appeal, including the costs of the appellant's notice of motion and the respondents' notice of motion.

Orders

Orders of the court

(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.

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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