Hills v Gooden

[2024] NSWCA 95

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hills v Gooden [2024] NSWCA 95

Hearing dates:

29 April 2024

Date of orders:

29 April 2024

Decision date:

01 May 2024

Before:

Adamson JA

Decision:

(1) Order pursuant to r 51.41(1) of the Uniform Civil Procedure Rules 2005 (NSW) dismissing the appeal as incompetent.

(2)   Order the appellants to pay the respondent’s costs of the appeal and the costs of the notice of motion dated 26 March 2024.

Catchwords:

CIVIL PROCEDURE — appeal — whether appeal should be dismissed as incompetent — Uniform Civil Procedure Rules 2005 (NSW) r 51.41 — whether leave to appeal required — whether appeal involves a matter at issue amounting to $100,000 or more — Supreme Court Act 1970 (NSW) s 101(2)(r) — where appeal does not disclose claim for damages or breach that is capable of being valued

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), rr 13.6, 51.22, 51.41

Cases Cited:

Jardin v Metcash Ltd [2011] NSWCA 409; (2011) 285 ALR 677

Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299

Maynes v Casey [2011] NSWCA 156

Category:

Principal judgment

Parties:

Terrence Graeme Hills (First Appellant)
Universal Equipment Pty Ltd (Second Appellant)
William Newton Gooden (Respondent)

Representation:

Counsel:
No appearance (Appellants)
M Gvozdenovic (Respondent)

Solicitors:
Sydney Law Practice (Appellants)
Kent McRae Lawyers (Respondent)

File Number(s):

2023/464937

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Date of Decision:

27 November 2023

Before:

Peden J

File Number(s):

2022/318668

JUDGMENT

Introduction

1. On 27 November 2023, Peden J (the primary judge) ordered Universal Equipment Pty Ltd (the company), the second defendant, to give possession of certain property at Galore in New South Wales (the property) to the plaintiff, William Gooden. The primary judge also made an order declaring that Terrence Hills, the first defendant, and the company (together the defendants, or the appellants) had breached an agreement with Mr Gooden by failing to cease quarrying operations and vacate the property and an order restraining the defendants from quarrying the property. The primary judge’s reasons were available to the parties and to this Court but, at the time of the hearing of the notice of motion, had not yet been published on Caselaw.

2. The defendants filed a notice of intention to appeal on 22 December 2023 and a notice of appeal on 27 February 2024, in which they sought to set aside each of the orders made by the primary judge. Mr Gooden (the respondent to the appeal) filed a notice of appearance on 15 March 2024. At the first return date on 20 March 2024, the respondent alleged that the appeal was incompetent as leave to appeal was required by reason of s 101(2)(r) of the Supreme Court Act 1970 (NSW) (the Act). The appellants appeared by their legal representative at that directions hearing.

3. Section 101(2)(r) provides that an appeal shall not lie, except by leave of this Court, from:

“(r)  a final…