Atkinson v Jeffery

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.