AB v NSW

[2014] NSWCA 243

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Competency of appeal
3. › Final and interlocutory orders
4. › Summary dismissal of proceedings for failure to disclose reasonable cause of action
5. › Whether order dismissing proceedings under UCPR r 13.4 is interlocutory
6. › Supreme Court Act 1970 (NSW), s 101(2)(e)
7. › Uniform Civil Procedure Rules 2005 (NSW), r 13.4
1. Practice and Procedure
2. › Costs
3. › Costs of appeal
4. › Objection to competency brought outside 28-day period
5. › Whether 'costs of the appeal' in UCPR r 51.41(2)(a) includes costs of competency objection
6. › Whether court should 'otherwise order'
7. › Uniform Civil Procedure Rules 2005 (NSW), r 51.41
1. Practice and Procedure
2. › Precedent
3. › Intermediate appellate courts
4. › Whether to follow decision of interstate intermediate appellate court
5. › Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 not followed

Quick Take

An order for summary dismissal of proceedings under UCPR r 13.4 is interlocutory, not final, and an appeal requires leave under s 101(2)(e) of the Supreme Court Act 1970 (NSW). Florida Investments should not be relied upon in NSW. Where a respondent objects to competency outside the 28-day period in UCPR r 51.41(1), the costs regime in r 51.41(2) governs all costs of the appeal including the costs of the competency objection, and the respondent bears the onus of persuading the court to 'otherwise order'.