Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust (the applicant) sought leave to appeal to the Court of Appeal of New South Wales against a decision of the District Court. The dispute concerned an application to set aside a default judgment and a subsequent costs order made by the District Court. The applicant contended that the amount in issue for the purposes of leave to appeal was the costs order, which exceeded the statutory threshold, rather than the original judgment amount which was below it.

The primary legal issues before the Court of Appeal were whether the applicant had satisfied the threshold requirement for leave to appeal under the *District Court Act 1973* (NSW) and the *Civil Procedure Act 2005* (NSW), and if so, whether there were sufficient grounds to grant leave. Specifically, the Court had to determine whether an appeal challenging a costs order, independently of the substantive judgment, could satisfy the monetary threshold for leave to appeal when the substantive judgment itself was below that threshold. The Court also considered the interpretation of section 127(2)(b) of the *District Court Act 1973* (NSW), which deals with appeals from judgments or orders "as to costs only".

The Court of Appeal reasoned that the threshold for leave to appeal under section 127(1) of the *District Court Act 1973* (NSW) applies to the "amount in controversy" in the appeal. It held that an appeal against a costs order, even if the costs themselves exceed the threshold, does not automatically satisfy the requirement if the underlying substantive dispute is below the threshold, unless the appeal is *solely* as to costs. The Court found that the applicant's challenge to the default judgment was not solely an appeal as to costs, and therefore the substantive amount of the original judgment, being below the threshold, was the relevant figure. The Court also noted that the expense of the appeal was not proportionate to the amount in issue, a relevant consideration under section 58 of the *Civil Procedure Act 2005* (NSW).

Consequently, the Court of Appeal refused the application for leave to appeal and ordered the applicant to pay the respondent's costs in the Court of Appeal.