Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2)

Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son (the appellant) appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision of the primary judge. The dispute concerned the competency of the appellant's appeal, specifically whether it was an appeal as of right or required leave. The core of the dispute revolved around the value of the matter at issue and whether the costs awarded at trial contributed to meeting the threshold for an appeal as of right.

The legal issue before the Court of Appeal was whether the appellant's appeal was competent under section 101(2)(r) of the *Supreme Court Act 1970* (NSW). This section generally requires leave to appeal unless the amount or value of the matter in issue exceeds $100,000. The appellant contended that the costs awarded at trial, when added to the principal sum in dispute, exceeded this threshold, thereby entitling them to an appeal as of right. The Court had to determine whether the costs awarded at trial should be included in the calculation of the "amount or value of the matter in issue" for the purposes of section 101(2)(r).

The Court of Appeal held that the appeal was incompetent. Their Honours reasoned that the phrase "amount or value of the matter in issue" in section 101(2)(r) refers to the substantive dispute between the parties, not the costs awarded by the trial judge. They noted that while decisions on the interpretation of similar provisions in antecedent legislation could be considered, the plain meaning of the statutory language was clear. The costs of the litigation were a consequence of the dispute, not part of the dispute itself. Therefore, the costs awarded at trial did not contribute to the $100,000 threshold for an appeal as of right.

Consequently, the Court of Appeal ordered that the notice of appeal be dismissed as incompetent. The appellant was also ordered to pay the respondent's costs of the notice of motion filed on 28 January 2014.