Nanschild v Pratt

Case [2011] NSWCA 85

Court of Appeal

New South Wales
Case Title: Nanschild v Pratt
Medium Neutral Citation: [2011] NSWCA 85
Hearing Date(s): 25 March 2011
Decision Date: 08 April 2011
Jurisdiction:
Before:

McColl JA at [1]
Campbell JA at [59]
Decision:

1. Summons filed on 16 November 2010 dismissed with costs.
2. Notice of motion filed on 22 November 2010 dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - extension of time to file notice of appeal - competence of appeal - applicant seeks to vary judgment below by $66,598 - whether appeal involves claim, demand or question to or respecting civil right amounting to or to the value of $100,000 - Supreme Court Act 1970 (NSW) s 101(2)(r)(ii)

APPEAL - leave to appeal - extension of time to file a summons seeking leave to appeal - whether prospects of obtaining leave to appeal - whether appeal raises any question of general legal principle - Uniform Civil Procedure Rules 2005 51.10
Legislation Cited:

Family Provision Act 1982 (NSW)
Judiciary Act 1903 (Cth)
Property (Relationships) Act 1994 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited:

Aroona Developments Pty Limited (In Liq) v Killen [2004] NSWCA 363; (2004) 50 ACSR 668
Attorney-General (Qld); Ex rel Duncan v Andrews [1979] HCA 24; (1979) 145 CLR 573
Ballas v Theophilos (No 1) [1957] HCA 49; (1957) 97 CLR 186
Bladwell v Davis [2004] NSWCA 170
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Hooper v Rowley [2004] NSWCA 398
Howlett v Neilson [2005] NSWCA 149; (2005) 33 Fam LR 402
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Komba v National Australia Bank Limited [2010] VSCA 232
Moller v Roy [1975] HCA 31; (1975) 132 CLR 622
Nanschild v Pratt [2010] NSWSC 344
Nanschild v Pratt, Supreme Court of New South Wales, unreported, 4 February 2011
Oertel v Crocker [1947] HCA 40; (1947) 75 CLR 261
Tomko v Palasty (No 2) [2007] NSWCA 369
Texts Cited:
Category: Principal judgment
Parties:

Deborah Nanschild - Applicant
Tracy Pratt - Respondent
Representation
- Counsel:

Counsel:
S Reuben - Applicant
G Foster - Respondent
- Solicitors:

Solicitors:
Mazengarb Barralet Family Lawyers - Applicant
Campbell & Co Lawyers - Respondent
File number(s): CA 2008/277044
Decision Under Appeal
- Court / Tribunal:
- Before: Pembroke J
- Date of Decision: 22 April 2010
- Citation: Nanschild v Pratt [2010] NSWSC 344
- Court File Number(s) SC 2008/277044
Publication Restriction:

Judgment

  1. McCOLL JA: On 22 April 2010 Pembroke J delivered judgment in proceedings commenced by the applicant, Deborah Nanschild, for an adjustive…

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AGLC
Nanschild v Pratt [2011] NSWCA 85
Case
[2011] NSWCA 85
Decision Date

CaseChat Overview and Summary

The applicant, Nanschild, sought an extension of time to file a notice of appeal against a judgment of the Supreme Court of New South Wales. The dispute concerned an attempt by Nanschild to vary the judgment below by $66,598. The appeal was heard by McColl and Campbell JJA.

The primary legal issue before the Court of Appeal was whether the appeal involved a claim, demand, or question respecting a civil right amounting to or to the value of $100,000, as required by section 101(2)(r)(ii) of the *Supreme Court Act 1970* (NSW) for the appeal to be competent. A secondary issue was whether the applicant had prospects of obtaining leave to appeal, particularly if the appeal did not raise any question of general legal principle, as contemplated by rule 51.10 of the *Uniform Civil Procedure Rules 2005*.

The Court determined that the value of the claim did not meet the threshold stipulated in section 101(2)(r)(ii) of the *Supreme Court Act 1970*. Consequently, the appeal was not competent. The Court also considered the applicant's prospects of obtaining leave to appeal, finding them insufficient.

The summons filed on 16 November 2010 and the notice of motion filed on 22 November 2010 were both dismissed with costs.

Orders

Orders of the court

1. Summons filed on 16 November 2010 dismissed with costs.

2. Notice of motion filed on 22 November 2010 dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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