May v Costaras

[2025] NSWCA 128

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

May v Costaras [2025] NSWCA 128

Hearing dates:

02 June 2025

Date of orders:

02 June 2025

Decision date:

02 June 2025

Before:

Griffiths AJA

Decision:

(1) Dismiss the motion filed 16 May 2025 objecting to competency.

(2) The respondent pay the appellant’s costs of the motion.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — where notice of appeal filed out of time — whether value of claim sufficient for purpose of s 101(2)(r) of the Supreme Court Act 1970 (NSW)

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.41

Cases Cited:

AB v State of New South Wales [2014] NSWCA 243

Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267

Macatangay v State of New South Wales (No 2) [2009] NSWCA 272

May v Costaras [2025] NSWSC 90

Oertel v Crocker (1947) 75 CLR 261

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Michael May (Appellant / Respondent to motion)
Lila Costaras (Respondent / Applicant on motion)

Representation:

Counsel:
B Phillips (Appellant / Respondent to motion)
Respondent / Applicant on motion (Self-represented)

Solicitors:
Proctor Phair Lawyers (Appellant / Respondent to the motion)

File Number(s):

2025/00129141

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2025] NSWSC 90

Date of Decision:

25 February 2025

Before:

Lindsay J

File Number(s):

2022/00321875

ex tempore JUDGMENT (REVISED)

1. By notice of motion filed 16 May 2025, the respondent to the appeal challenges the competency of the appeal, as she is entitled to do under r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

2. The appeal is from the decision of Lindsay J in May v Costaras [2025] NSWSC 90. His Honour held that a property was held on trust by the parties in the proportions of two-thirds for the now appellant and one-third for the now respondent.

3. By a notice of appeal filed 4 April 2025, the appellant appeals against the orders of Lindsay J made on 10 March 2025. The primary relief sought by the appellant is a declaration that the whole of the respondent’s interest in the property is subject to a resulting trust in favour of the appellant.

4. The objection to competency came before me today as Referrals Judge. It is clear that I have the power as a single judge of appeal to determine the motion (see Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15]).

5. It is equally plain that, although the motion objecting to competency was filed outside the 28 days specified in UCPR r 51.41, the motion may still be determined (see AB v State of New South Wales [2014] NSWCA 243 at [8]), although the late filing may have costs implications.

6. Both parties filed outlines of written submissions on 30 May 2025. The first matter raised by the respondent is that the appeal was filed out of time on the basis that the “material date” is the date of the judgment (i.e. 25 February 2025). That is plainly wrong. The “material date” is the date that orders were made, being 10 March 2025 (see r 51.2).

7. The second basis for the claim of incompetency relates to s 101(2)(r) of the Supreme Court Act 1970 (NSW) and whether the appeal is from a judgment or order that involves a matter at issue amounting to or of the value of $100,000 or more, or that involves “directly or indirectly” any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more. If either of those provisions apply, leave to appeal is required.

8. It is sufficient to focus on the second requirement (see Oertel v Crocker (1947) 75 CLR 261 and the decision of this Court in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267). The relevant issue is the value of the claim rather than the value of the property to which the claim relates. As noted above, the primary judge held that the property was held on trust in the proportions of two-thirds for the appellant and one-third for the respondent. According to a document entitled “Property occupations Form 6”, which was put into evidence by the appellant and became “Exhibit A” in the proceeding, the reserve price for the property was stated to be $330,000. Ms Costaras confirmed in oral address that she had inserted that figure into that form, although she also said that the property was scheduled to be auctioned in late June this year, and that an offer of $290,000 had been received. The figure of $330,000 being the reserve price is the best evidence of the value of the whole property, and necessarily therefore one-third of that value, representing the appellant’s claim, exceeds the minimum cap.

9. I see no basis at this stage, in the absence of any supporting evidence, to deduct from that amount figures relating to disbursements associated with the sale of the property. Accordingly, in my view, leave to appeal is not required, and the appeal is competent.

10. Several other issues are raised in the motion, although their true meaning is a little obscure. The respondent appears to suggest that the proceedings should be transferred to the Federal Circuit and Family Court of Australia. That would be entirely inappropriate because that court lacks jurisdiction to hear the appeal and there are no proceedings on foot, in any event, in that other court as far as this Court is aware. The respondent also claims that the appellant is in breach of various orders that were made below, as well as defaulting in his compliance with directions made by this Court. No convincing evidence was adduced by the respondent to make good those claims, and I give them no weight.

11. Finally, to the extent that the motion seeks to have the appeal dismissed on various substantive grounds, those are matters which are properly raised before the Court hearing the appeal.

12. The respondent indicated today that she wished to have the appeal expedited.  It is a matter for her to take the necessary steps to ensure that case management steps are taken so as to have the matter ready for hearing as soon as is practicable.

13. For these reasons, I would dismiss the motion objecting to competency and order the respondent to pay the appellant’s costs of the motion.

**********