Coshott v Vardas - [2017] NSWCA 258

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Coshott v Vardas [2017] NSWCA 258
Hearing dates: 10 October 2017
Date of orders: 10 October 2017
Decision date: 16 October 2017
Before: McColl JA, Leeming JA, Sackville AJA
Decision:
1. Dismiss appeal as incompetent.
2. No order as to the costs of the appeal (including the competency motion).

Catchwords: APPEALS – competency of appeal – whether appellant’s affidavit complied with Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 51.22 – whether appeal involved a matter to the value of $100,000 or more – whether respondent entitled to costs order having failed to file an objection to competency within the time specified by UCPR r 51.41(1).
Legislation Cited:
Bankruptcy Act 1966 (Cth)

Civil Procedure Act 2005 (NSW), s 56(1)
Supreme Court Act 1970 (NSW), s 101(2)(r)
Supreme Court Rules 1970 (NSW) Pt 51, r 8
Uniform Civil Procedure Rules 2005 (NSW), r 51.22
Cases Cited: Bracks v Smyth-Kirk [2009] NSWCA 401; 263 ALR 522
Goulding v Kirby [2003] NSWCA 214
Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38
Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371
Ozpinar v Assaily [2001] NSWCA 23
Vardas v Coshott [2017] NSWSC 29
Category: Principal judgment
Parties: Robert Gilbert Coshott (First Appellant)
Ljiljana Coshott (Second Appellant)
George Vardas (First Respondent)
The Manager, Costs Assessment (Second Respondent)
Chris Wall (Third Respondent)
Representation:
Counsel:
Mr M Sahade (Appellants)
Mr JA Watson / Ms K Lindeman (Respondents)
Solicitors:
Comino Prassas (Appellants)
Yeldham Price O’Brien Lusk (Respondents)

File Number(s): 2017/122103
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2017] NSWSC 425

Date of Decision:

19 April 2017

Before:

Slattery J

File Number(s):

2016/206038

Judgment

THE COURT: On 10 October 2017, this Court made an order dismissing the appeal in this matter as incompetent. The Court reserved both the question of costs and its reasons. This judgment deals with both matters.

Background

The appellants commenced proceedings against the respondent in the District Court in 2000. [1] They claimed damages for breach of contract and in tort. The proceedings were subsequently transferred to the Equity Division (Equity Division Proceedings).
1. There are three respondents to the appeal. The second and third respondents filed submitting appearances. We refer to the first respondent simply as the “respondent”.
On 3 August 2004, Bergin J dealt with a number of interlocutory applications in the Equity Division Proceedings including a notice of motion filed by the appellants seeking leave to amend their statement of claim. Her Honour granted the appellants leave to amend and made the following order as to costs:

“I order that the defendant [the respondent] pay the plaintiff’s costs of the Motion for leave to amend the Statement of Claim”. (Costs Order)

The Costs Order appears to have mistakenly referred to “the plaintiff’s costs”, rather than to “the plaintiffs’ costs”. For present purposes nothing turns on the error. We have assumed that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coshott v Vardas

Details

AGLC: Coshott v Vardas [2017] NSWCA 258
Case: [2017] NSWCA 258
Decision Date: 16 October 2017

CaseChat Overview and Summary

In *Coshott v Vardas*, the Court of Appeal of New South Wales considered the competency of an appeal. The primary dispute concerned whether the appellant's affidavit met the requirements of rule 51.22 of the *Uniform Civil Procedure Rules 2005* (NSW) and whether the appeal involved a matter to the value of $100,000 or more, which are prerequisites for an appeal as of right. Additionally, the court addressed whether the respondent was entitled to a costs order despite failing to file an objection to the competency of the appeal within the time stipulated by rule 51.41(1) of the UCPR.

The court was required to determine two principal legal issues. Firstly, whether the appellant's affidavit satisfied the requirements of UCPR rule 51.22, which governs the content of affidavits in support of appeals. Secondly, the court had to ascertain whether the appeal involved a "sufficiently significant" matter, specifically whether it concerned a claim or counterclaim to the value of $100,000 or more, as required by section 101(2) of the *Civil Procedure Act 2005* (NSW) for an appeal as of right. The court also considered the implications of the respondent's failure to file a timely objection to competency.

The Court of Appeal found that the appellant's affidavit did not comply with the requirements of UCPR rule 51.22. Furthermore, the court determined that the appeal did not involve a matter to the value of $100,000 or more, meaning the appeal was not an appeal as of right. Consequently, the appeal was deemed incompetent. The court noted that while the respondent had failed to file an objection to competency within the prescribed time, this did not preclude the court from dismissing an incompetent appeal.

The appeal was dismissed as incompetent. No order was made as to the costs of the appeal, including the costs of the competency motion.

Orders

Orders of the court

1. Dismiss appeal as incompetent.

2. No order as to the costs of the appeal (including the competency motion).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Coshott v Vardas [2017] NSWCA 258
Hearing dates:	10 October 2017
Date of orders:	10 October 2017
Decision date:	16 October 2017
Before:	McColl JA, Leeming JA, Sackville AJA
Decision:	1. Dismiss appeal as incompetent. 2. No order as to the costs of the appeal (including the competency motion).
Catchwords:	APPEALS – competency of appeal – whether appellant’s affidavit complied with Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 51.22 – whether appeal involved a matter to the value of $100,000 or more – whether respondent entitled to costs order having failed to file an objection to competency within the time specified by UCPR r 51.41(1).
Legislation Cited:	Bankruptcy Act 1966 (Cth) Civil Procedure Act 2005 (NSW), s 56(1) Supreme Court Act 1970 (NSW), s 101(2)(r) Supreme Court Rules 1970 (NSW) Pt 51, r 8 Uniform Civil Procedure Rules 2005 (NSW), r 51.22
Cases Cited:	Bracks v Smyth-Kirk [2009] NSWCA 401; 263 ALR 522 Goulding v Kirby [2003] NSWCA 214 Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 Ozpinar v Assaily [2001] NSWCA 23 Vardas v Coshott [2017] NSWSC 29
Category:	Principal judgment
Parties:	Robert Gilbert Coshott (First Appellant) Ljiljana Coshott (Second Appellant) George Vardas (First Respondent) The Manager, Costs Assessment (Second Respondent) Chris Wall (Third Respondent)
Representation:	Counsel: Mr M Sahade (Appellants) Mr JA Watson / Ms K Lindeman (Respondents) Solicitors: Comino Prassas (Appellants) Yeldham Price O’Brien Lusk (Respondents)
File Number(s):	2017/122103
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2017] NSWSC 425 Date of Decision: 19 April 2017 Before: Slattery J File Number(s): 2016/206038