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…