Coshott v Vardas

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.