Pawlowska v Zajglic

[2011] NSWCA 118

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Right of appeal
3. › Jurisdiction of Court of Appeal
4. › Whether leave to appeal required
5. › Whether claim involves matter at issue amounting to $100,000 or more
6. › Realistic prospect of obtaining threshold amount
7. › Supreme Court Act 1970 (NSW), s 101(2)(r)
1. Succession Law
2. › Family provision
3. › Application under Family Provision Act 1982 (NSW)
4. › Appeal from dismissal of application
5. › Whether realistic prospects on appeal
6. › Small estate
7. › Two-stage test
1. Appeal
2. › Standard of appellate review
3. › Appeal from discretionary decision
4. › Family provision orders
5. › House v The King principles
6. › Whether error in exercise of discretion established
1. Practice and Procedure
2. › Notice of appeal
3. › Requirements
4. › Identification of grounds relied upon
5. › Specificity of grounds
6. › UCPR 51.18

Quick Take

For an appeal as of right under s 101(2)(r) of the Supreme Court Act 1970 (NSW), it is the realistic worth of the claim on appeal — not the value of the underlying property or estate — that must exceed $100,000. In Family Provision Act appeals, even if the trial judge applied the wrong test, the appellate court must assess whether re-exercise of the discretion could realistically yield $100,000 or more. UCPR 51.41(2)(a) governs only the general costs of an appeal struck out as incompetent, not the costs of the notice of motion to strike out, which follow the event.