Sajn v Kennedy [2011] NSWCA 189 (11 July 2011)

Last Updated: 15 July 2011

Court of Appeal New South Wales

Case Title:	Sajn v Kennedy
Medium Neutral Citation:	[2011] NSWCA 189
Hearing Date(s):	11 July 2011
Decision Date:	11 July 2011
Jurisdiction:
Before:	Hodgson JA
Decision:	On Mr Kennedy's notice of motion dated 20 June 2011: (1) Appeal dismissed as incompetent; (2) Ms Sajn to pay Mr Kennedy's costs of that notice of motion; (3) Costs of the appeal to date to be costs in an application for leave to appeal to be filed by Ms Sajn; (4) Time for the filing of that application and accompanying white book extended to 28 days from today; (5) The white book need not include material that has already been included in the red book of the appeal. In the other notice of motion: Ms Sajn's notice of motion dated 4 July 2011 is dismissed with no order as to 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:	PROCEDURE - Appeal - Application to dismiss appeal as incompetent - Appropriate orders.
Legislation Cited:	Uniform Civil Procedure Rules rr 51.22, 51.41
Cases Cited:	Maynes v Casey [2011] NSWCA 156
Texts Cited:
Category:	Procedural and other rulings
Parties:	Danica Maria SAFN (Appellant) Matthew Harold KENNEDY (Respondent)
Representation
- Counsel:	Appellant: L J Friedwald Respondent: A D Crossland
- Solicitors:	Appellant: Stojanovic Solicitors Respondent: ---
File number(s):	2007/294235
Decision Under Appeal
- Court / Tribunal:
- Before:	S J Gibb DCJ
- Date of Decision:	22 December 2010
- Citation:
- Court File Number(s)	2007/294235
Publication Restriction:

Judgment

1. HIS HONOUR: I am dealing with two notices of motion. The first is one brought by the respondent to the appeal, Mr Kennedy, seeking an order that the appeal be struck out as incompetent. The other is a notice of motion brought by the appellant Ms Sajn for leave to file an amended notice of appeal.
   
2. When the appeal was filed, the requirement of Uniform Civil Procedure Rules ( UCPR ) r 51.22 was not complied with, in that the required affidavit was not filed.
   
3. After the bringing of Mr Kennedy's application that the appeal be dismissed, an affidavit was filed seeking to satisfy the requirement of showing that there was a matter at issue amounting to or of the value of $100,000 or more.
   
4. The affidavit perhaps raises the possibility that the appellant's claim might result in a verdict of $100,000 or more; but it seems to me that it does not satisfy the requirement of showing material that would satisfy the court that the appellant, Ms Sajn, has reasonable prospects of obtaining a verdict of that amount. The requirements for such an affidavit are set out in pars [8] and [9] of Maynes v Casey [2011] NSWCA 156. And in my view, the affidavit has not satisfied those requirements.
   
5. I think therefore it is appropriate that the appeal be dismissed as incompetent. However, I note that the application was not brought within the time limited by UCPR 51.41, and a red book for the appeal has already been prepared.
   
6. In the circumstances, I think the appropriate order as to the costs of the appeal that is being dismissed as incompetent is that those costs should be costs in the application for leave to appeal which Ms Sajn's counsel tells me will be brought.
   
7. I would propose to extend the time for filing an application for leave to appeal, and accompanying white book, to 28 days from today; and I will also direct that the white book need not include material that has already been included in the red book that was prepared for the appeal.
   
8. Although the notice of motion was brought late, I think the appropriate order for costs on the notice of motion is that the respondent to the notice of motion Ms Sajn pay the costs of the notice of motion. The result of that notice of motion means that the other notice of motion for leave to file an amended notice of appeal should be dismissed; and I would propose that no order as to costs should be made in relation to that notice of motion.
   
9. So the orders are:
   

On Mr Kennedy's notice of motion dated 20 June 2011 :

(1) Appeal dismissed as incompetent;

(2) Ms Sajn to pay Mr Kennedy's costs of that notice of motion;

(3) Costs of the appeal to date to be costs in an application for leave to appeal to be filed by Ms Sajn;

(4) Time for the filing of that application and accompanying white book extended to 28 days from today;

(5) The white book need not include material that has already been included in the red book of the appeal.

In the other notice of motion:

Ms Sajn's notice of motion dated 4 July 2011 is dismissed with no order as to costs.

oOo