Pawlowska v Zajglic

Case [2011] NSWCA 118

Court of Appeal

New South Wales
Case Title: Pawlowska v Zajglic
Medium Neutral Citation: [2011] NSWCA 118
Hearing Date(s): 2 May 2011
Decision Date: 02 May 2011
Jurisdiction:
Before:

Campbell JA
Decision:

(1) Notice of Appeal struck out.
(2) No order as to costs on the appeal.
(3) Appellant to pay the costs of the Notice of Motion filed by the Respondent on 14 April 2011.
[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 - Right of appeal - Jurisdiction of the Court of Appeal - Supreme Court Act 1970 s 101(2)(r)(ii) - Whether leave to appeal required - Whether claim of appellant that appeal involves a matter at issue amounting to $100,000 or more is both credible and realistic - WILLS - Application under Family Provision Act 1982 (NSW) - Whether realistic prospects on appeal - PRACTICE AND PROCEDURE - Requirements of Notice of Appeal - Identification of grounds relied upon in support of appeal - COSTS - Costs of appeal - UCPR 51.41 - notice of motion seeking to strike out Notice of Appeal must be filed within 28 days - Costs of notice of motion - UCPR 51.41 inapplicable - costs follow the event
Legislation Cited:

District Court Act 1973
Family Provision Act 1982
Judiciary Act 1903 (Cth)
Supreme Court Act 1970
Uniform Civil Procedure Rules
Cases Cited:

Cole v Commonwealth (1961) 106 CLR 653
Durham v Durham [2011] NSWCA 62
Ebert v Union Trustee Co of Australia Ltd (1957) 98 CLR 172
Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No.2) [2001] NSWCA 450
Grygiel v Baine [2004] NSWCA 377
Hampson v Hampson [2010] NSWCA 359
Hooper v Rowley [2004] NSWCA 398
House v The King (1936) 55 CLR 499
Najdovski v Crnoljlovic [2008] NSWCA 175; [2008] NSWCA 175; (2008) 72 NSWLR 728
Pawlowska v Zajglic [2010] NSWSC 864
Pegela Pty Ltd v Oates [2010] NSWCA 186
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Singer v Berghouse (1994) 181 CLR 201
Trad v Harbour Radio Pty Ltd [2010] NSWCA 41
Vigolo v Bostin (2005) 221 CLR 191
Texts Cited:
Category: Interlocutory applications
Parties:

Helena Pawlowska (Appellant)
Andrzej Mieczyslaw Zajglic (Respondent)
Representation
- Counsel:

Counsel
G Foster (Appellant)
R Hanrahan (Respondent)
- Solicitors:

Solicitors
Jay Olszanicki (Appellant)
Drexler & Partners (Respondent)
File number(s): 280532 of 2008
Decision Under Appeal
- Court / Tribunal:
- Before: Ball J
- Date of Decision: 05 August 2010
- Citation: Pawlowska v Zajglic [2010] NSWSC 864
- Court File Number(s) 2008/280532
Publication Restriction:

Nil

Judgment

  1. HIS HONOUR : This is an application to strike out an appeal on the basis that…

Continue reading Pawlowska v Zajglic

Sign in free to access the full text

Details
AGLC
Pawlowska v Zajglic [2011] NSWCA 118
Case
[2011] NSWCA 118
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an appeal by the appellant, Pawlowska, against a decision concerning an application made under the *Family Provision Act 1982* (NSW). The respondent, Zajglic, sought to strike out the Notice of Appeal.

The primary legal issue before the Court of Appeal was whether leave to appeal was required under section 101(2)(r)(ii) of the *Supreme Court Act 1970* (NSW). This question turned on whether the appellant's claim that the appeal involved a matter at issue amounting to $100,000 or more was both credible and realistic, and whether the appeal had realistic prospects of success. A secondary issue concerned the adequacy of the Notice of Appeal in identifying the grounds relied upon.

Campbell JA determined that the appellant had not demonstrated that the appeal involved a matter at issue of $100,000 or more, nor that there were realistic prospects of success on appeal. Consequently, leave to appeal was required and had not been granted. The Court also found the Notice of Appeal to be deficient in its identification of grounds.

The Court ordered that the Notice of Appeal be struck out. No order was made as to the costs of the appeal itself, but the appellant was ordered to pay the costs of the respondent's Notice of Motion filed on 14 April 2011.

Orders

Orders of the court

(1) Notice of Appeal struck out.

(2) No order as to costs on the appeal.

(3) Appellant to pay the costs of the Notice of Motion filed by the Respondent on 14 April 2011.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.