Atkinson v Jeffery

On 25 January 2024, the appellant, Nicole Atkinson (who was the fourth defendant in the Court below), filed a notice of appeal from the orders of Peden J (the primary judge) made on 27 October 2023: Jeffery v Adams [2023] NSWSC 1270. The respondents to the appeal, Trevor and Dina Jeffery (the Jefferys), were the plaintiffs in the Court below. Ronald, Kay and Edward Adams (the Adams defendants), the first, second and third defendants respectively in the Court below, are not parties to the appeal.

By notice of motion filed on 4 March 2024, the Jefferys sought that the appeal be dismissed as incompetent on the basis that Ms Atkinson had not sought leave to appeal. The Jefferys submitted that leave was required in respect of grounds 1-9 and 12-13 as the value of the matter at issue was less than $100,000 (s 101(2)(r) of the Supreme Court Act 1970 (NSW) (the Act)). It is not necessary to address grounds 10 or 11 as they are no longer pressed.

In the alternative, the Jefferys sought orders that each of the grounds of appeal be struck out on various bases, including that Ms Atkinson lacked standing, the ground had no prospects of success, that the ground was an abuse of process, that the ground challenged an interlocutory order, or that the ground had no utility in that the work ordered to be undertaken had been completed. Because of my view that the appeal is incompetent, there is no need to address the alternative application.

The Jefferys are the registered proprietors of land at South Boambee in New South Wales known as Lot 34. Lot 34 abuts Lot 133, of which the Adams defendants are registered proprietors. Lot 133 abuts Lot 132 of which Ms Atkinson is the registered proprietor. Ronald and Kay Adams are the parents of Edward Adams and Ms Atkinson. Mr Adamson, solicitor, appeared for the Adams defendants and Ms Atkinson in the Court below and appeared for Ms Atkinson in this Court. Mr Alexis SC appeared with Mr Michael for the Jefferys in the Court below and in this Court.

In the Court below, the Jefferys sought to enforce certain rights of way over Lots 133 and 132 which afforded them access to Boambee Road from Lot 34 (which was otherwise land-locked) and access to a paddock at the top of their property. There were two registered rights of carriageway (ROC). The first ROC derived from a Deed of Licence and passed, for a short stretch, through Lot 132 but predominantly passed through Lot 133. It connected the lower part of Lot 34 (where the Jefferys’ house was located) to the paddock at the top of the hill. The second ROC passed exclusively through Lot 133 and intersected with the first ROC. Only the second ROC allowed for carriage to the Boambee Road.

As a dam had been built over part of the first ROC, the Jefferys had used, with the acquiescence of the Adams defendants, an unregistered ROC which was referred to as “K” and marked as such on a survey (ROC K). ROC K comprised a loop which circumvented the dam on Lot 133 and joined the first ROC with the second ROC. There was already an existing easement along ROC K in favour of Transgrid and Ms Atkinson (as it was her means of access to Lot 132). There was also an Access Track on Lot 133. The first and second ROCs, ROC K, the Access Track and the respective lots are depicted in the survey diagram, which was reproduced at [12] of the reasons of the primary judge and is reproduced below.

In the Court below, the Jefferys sought to enforce, as against the Adams defendants, the first and second ROCs and the Access Track. They also applied for an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) along ROC K on Lot 133. They sought associated declaratory and injunctive relief, including to stop Ms Atkinson preventing them from using the first ROC to pass through Lot 132.

The Adams defendants filed a cross-claim seeking damages for trespass, which was dismissed (see the orders below).

The primary judge identified the issues to be determined at [34] as follows:

The primary judge addressed the issue of compensation as follows:

The primary judge, in substance, granted the relief claimed by the Jefferys and made the following orders:

The easement granted in order (1) will be referred to as the s 88K easement.

As referred to above, Ms Atkinson filed her notice of appeal on 25 January 2024. The appeal was listed before the Registrar for directions on 21 February 2024. On that day, the Jefferys contended that the appeal was incompetent as leave to appeal was required and had not been sought. Accordingly, the Registrar directed the Jefferys to file a notice of motion for dismissal together with any affidavit evidence and submissions relied on in support by 4 March 2024.

On 4 March 2024, the Jefferys filed the notice of motion for dismissal (the Jefferys motion), an affidavit and written submissions. The matter came back before the Registrar for directions on 18 March 2024. The Registrar made the following directions:

Ms Atkinson did not comply with the first order made by the Registrar. When the matter came back before the Registrar on 22 April 2024, the Registrar made the following orders:

On 26 April 2024, Ms Atkinson filed a notice of motion (the Atkinson motion) seeking orders setting aside order (1) made by the Registrar on 22 April 2024; and that leave be granted to issue a subpoena to Peter Hawkes, surveyor, in the form of an annexed draft.

She also applied for leave to rely on the following affidavits at the hearing of the Jefferys motion and the Atkinson motion:

Mr Adamson sought to read the affidavits identified in the Atkinson motion in support of the Atkinson motion and in opposition to the Jefferys motion. Mr Alexis SC objected to the affidavits of Mr Pung, Mr Nimmo and Ms Atkinson (apart from page 9) on the grounds of relevance but accepted that the most efficient course would be for me to read the affidavits and rule on their admissibility in the reasons for decision.

Mr Adamson also made an oral application for leave to amend the notice of appeal in accordance with the draft amended notice of appeal.

Section 101(2) of the Act provides that leave to appeal is required from:

Section 88K of the Conveyancing Act relevantly provides:

I propose to address the Jefferys motion for dismissal first. This will inevitably require aspects of the Atkinson motion to be addressed, including whether leave ought be granted to rely on the affidavit evidence identified above.

The first basis for dismissal is that the appeal is incompetent as leave is required by reason of s 101(2)(r) of the Act and has not been sought.

Mr Adamson submitted that leave to appeal was not required as the matter at issue amounted to $100,000 or more and involved, directly or indirectly, a claim respecting property amounting to the value of $100,000 or more. He contended that these thresholds were met on the following bases:

Mr Adamson relied on the affidavit of Mr Pung dated 10 April 2024 in which the deponent carried out a “desk-top” valuation of Lot 34 (the Jefferys property) and Lot 132 (Ms Atkinson’s property). Mr Pung opined that:

There are several difficulties with this submission. First, it was not run in the Court below. In other words, Ms Atkinson did not submit that she was entitled to compensation for the s 88K easement or that any such compensation ought be in the sum of $125,000 or $135,000. In the Court below, as the primary judge recorded at [93], the evidence of Mr Hollinshead, the expert valuer for the Jefferys, that compensation in the sum of $825 plus GST was appropriate was not controverted: that is, no opposing evidence was adduced and he was not cross-examined. Further, as is evident from the primary judge’s order (2), the parties who were entitled to compensation were the registered proprietors of Lot 133, the land burdened by the s 88K easement, being the Adams defendants. As Ms Atkinson had no interest in the land burdened by the s 88K easement and her land, Lot 132, was not burdened by the easement, there was no basis on which she could claim compensation under s 88K of the Conveyancing Act for the s 88K easement.

In addition, the evidence of Mr Pung was not “fresh” as there was no evidence to indicate that it could not have been obtained prior to the hearing in the Court below. It is apparent on its face that the evidence was obtained for the purposes of the leave application. So much is confirmed by Mr Adamson’s letter of instruction to Mr Pung which said, in part:

Finally, Mr Pung’s evidence of the difference the s 88K easement made to the value of Lots 34 and 132 was irrelevant, having regard to Sidoti v Hardy (2021) 105 NSWLR 1; [2021] NSWCA 105 in which Brereton JA at [172] confirmed that it was the value of the claim not the value of the property to which the claim related which was required to be worth $100,000 or more.

Section 101(2)(r) of the Act operates as a statutory restriction on the right to appeal: Maynes v Casey [2011] NSWCA 156 at [7] (Basten JA, Allsop P agreeing). The factor which determines whether leave is required is the value of the “matter at issue” in the appeal: Jardin v Metcash Ltd [2011] NSWCA 409; (2011) 285 ALR 677 at [20] (Campbell JA, Young and Meagher JJA agreeing). Where, as here, there is no claim for damages and no property or civil right involved that has the requisite value or is capable of being so valued, leave is required as the value of the matter at issue cannot be shown to be $100,000 or greater: see the cases referred to in Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [21] (Bell P, Meagher and Leeming JJA agreeing). As Barrett JA said in Re Felicity; Director-General, Family and Community Services [2012] NSWCA 272 at [17]:

Ms Atkinson had no claim for a monetary amount at all, since it was the Adams defendants whose land was to be burdened by the s 88K easement (thereby entitling them to compensation) and the Adams defendants who filed a cross-claim seeking damages for trespass.

However, even if it was arguable that Ms Atkinson did have a claim for compensation notwithstanding that her land (Lot 132) was not burdened by the s 88K easement, she did not, in the Court below, controvert the quantum advanced by the Jefferys of $825 plus GST, which falls far short of the threshold in s 101(2)(r) of the Act. Further, it is plain from Mr Adamson’s instructions to Mr Pung that the evidence of valuation sought was solely for the leave application and not for the appeal itself.

Finally, even if Ms Atkinson’s liability for costs was capable of being quantified in excess of $100,000, this does not obviate the requirement for leave as costs do not count towards the threshold: Condensing Vaporisers Aust Pty Ltd t/as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 at [22]-[28] (Leeming JA, Macfarlan and Ward JJA agreeing).

As the Jefferys have succeeded on their primary submission that the appeal is incompetent because leave is required and has not been sought, it is not necessary to address their alternative submission that the grounds of appeal ought be struck out.

The draft amended notice of appeal does not raise any further claim that could bear on the question whether the threshold in s 101(2)(r) of the Act has been met. However, it is necessary to address the following ground 3A which is sought to be added by the amendment:

In oral submissions, Mr Adamson expanded on this ground by submitting that his arthritis, which had been asymptomatic, or at least not painful, had become symptomatic and painful following the view. He did not elaborate on how this matter affected the value of Ms Atkinson’s claim in the appeal or how it would assist her to exceed the threshold in s 101(2)(r) of the Act, save to allege that there had been a denial of procedural fairness as a result of his personal infirmity. This matter does not assist in meeting the threshold requirement in s 101(2)(r) of the Act.

In these circumstances, it is not necessary to address Ms Atkinson’s application for leave to amend her notice of appeal as the proceedings are incompetent on the basis of the filed notice of appeal and would be if the draft amended notice of appeal were the operative initiating process.

Ms Atkinson’s application for leave to issue a subpoena is futile because a subpoena to the surveyor is not capable of affecting the competency of the appeal in the present case.

Ms Atkinson also challenged (by seeking to set aside or vary) the order made by the Registrar on 22 April 2024 requiring her to file and serve a summons for leave to appeal and a white folder by 26 April 2024. Mr Adamson submitted that it was erroneous for the Registrar to make such a direction in circumstances where Ms Atkinson contended that leave was not required. The appeal ought be dismissed as incompetent as Ms Atkinson has already been given two opportunities to file a summons for leave to appeal and a white folder and has, on both occasions, failed to comply with directions to do so, as well as maintaining, through Mr Adamson, that leave was not required. I am not satisfied that it would be appropriate merely to further extend the time to file a summons for leave to appeal and a white folder.

The balance of the Atkinson motion related to applications for leave to adduce evidence. As referred to above, Mr Alexis objected only to Mr Pung’s and Mr Nimmo’s affidavits. Mr Pung’s evidence ultimately proved to be irrelevant but ought be admitted on these applications as it was capable of being relevant and was required to be considered in order to address Mr Adamson’s argument. Mr Nimmo’s affidavit proved to be irrelevant because it was not necessary to address the Jefferys’ alternative basis for their notice of motion. However, as I considered it in order to appreciate Mr Adamson’s argument (which did not need to be addressed), it ought be admitted as relevant. Objection was also taken to Ms Atkinson’s affidavit of 24 April 2024 on the grounds of relevance. I admit page 9 of the affidavit, which comprises a survey as reference was made to it in the course of the hearing.

The Jefferys motion was filed in a timely way and brought to the Court’s attention the lack of competency of the appeal. The parties confirmed at the conclusion of the hearing that there is no reason why costs ought not follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

For the reasons given above, I make the following orders: