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Introduction

1. On 27 November 2023, Peden J (the primary judge) ordered Universal Equipment Pty Ltd (the company), the second defendant, to give possession of certain property at Galore in New South Wales (the property) to the plaintiff, William Gooden. The primary judge also made an order declaring that Terrence Hills, the first defendant, and the company (together the defendants, or the appellants) had breached an agreement with Mr Gooden by failing to cease quarrying operations and vacate the property and an order restraining the defendants from quarrying the property. The primary judge's reasons were available to the parties and to this Court but, at the time of the hearing of the notice of motion, had not yet been published on Caselaw.
2. The defendants filed a notice of intention to appeal on 22 December 2023 and a notice of appeal on 27 February 2024, in which they sought to set aside each of the orders made by the primary judge. Mr Gooden (the respondent to the appeal) filed a notice of appearance on 15 March 2024. At the first return date on 20 March 2024, the respondent alleged that the appeal was incompetent as leave to appeal was required by reason of s 101(2)(r) of the Supreme Court Act 1970 (NSW) (the Act). The appellants appeared by their legal representative at that directions hearing.
3. Section 101(2)(r) provides that an appeal shall not lie, except by leave of this Court, from: "(r) a final judgment or order in proceedings of the Court, other than an appeal - (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more."
4. By notice of motion filed on 26 March 2024, the respondent applied for an order pursuant to r 51.41(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) dismissing the appeal as incompetent. At a directions hearing the following day, 27 March 2024, there was no appearance on behalf of the appellants. The Registrar stood the matter over for further directions on 3 April 2024 and directed that the Registry issue a notice under UCPR, r 13.6 to the appellants to show cause why the appeal should not be dismissed or struck out for non-attendance on 27 March 2024.
5. At the directions hearing on 3 April 2024, the appellants appeared by their solicitor and directions were made which required the respondent (the applicant on the motion) to file evidence and submissions by 10 April 2024, the appellants (the respondents to the motion) to file evidence and submissions by 22 April 2024 and the respondent to file submissions in reply by 24 April 2024. The matter was stood over to 29 April 2024 for possible referral to a judge for the hearing of the notice of motion.
6. The respondent complied with the direction by filing an affidavit and submissions on 10 April 2024. The appellants did not comply with the directions in that they failed to file any evidence or submissions by 22 April 2024 or at all. On 23 April 2024, the respondent wrote to the appellants about the non-compliance but received no response. On 26 April 2024, the appellants' solicitor wrote to the respondent's solicitor offering to discontinue the appeal on the basis that there would be no order as to costs. The offer was rejected on the same day. The appellants' solicitor contacted the respondent's solicitor on 27 April 2024 to say that his instructions were to abandon the appeal and that he was not instructed to appear further in the appeal.
7. On 29 April 2024, Mr Gvozdenovic appeared on behalf of the respondent. He submitted that the appeal ought be dismissed as incompetent as leave was required pursuant to s 101(2)(r) of the Act. There was no appearance on behalf of the appellants.
8. At the conclusion of the hearing, I made the following orders: 1. Order pursuant to r 51.41(1) of the Uniform Civil Procedure Rules 2005 (NSW) dismissing the appeal as incompetent. 2. Order the appellants to pay the respondent's costs of the appeal and the costs of the notice of motion dated 26 March 2024.
9. The reasons for these orders are as follows.
10. The appellants and the respondent made agreements concerning access to, and mining of, a gravel pit on the property. A dispute between them arose, following which they referred the dispute to mediation at which the parties were legally represented. The respondent's case at first instance was that the appellants were in breach of a written agreement which they had signed and which was witnessed by their legal representatives at the mediation which provided that the appellants would cease to quarry the gravel pit and vacate the property.
11. The primary judge extracted the relevant operative clauses of this agreement in her Honour's reasons as follows: "1. William [the respondent] extends the time provided under the notice to vacate dated 10 February 2021 to 18 June 2022. 2. Hills [the appellant] agrees to vacate the quarry on or before 18 June 2022. 3. Hills agrees to remove from the quarry all chattels, plant or equipment not necessary for the operation of the quarry including maintenance of plant by 18 December 2021. 4. If Hills does not comply with 3 above then the date for vacation in 2 above becomes 14 days after notice from William to vacate. 5. Hills will cease quarrying operations from 18 June 2021. … 11. Any product not removed from the quarry by the end of Hills Licence created by this agreement will belong to William. 12. Any chattels, plant and equipment not removed by Hills by 18 June 2022 may be sold by William who will account to Hills for the sale proceeds net of expenses incurred selling these items. Any items which are unsaleable may be disposed at William's discretion. 13. If Hills quarries any product additional to that currently stockpiled then his license to occupy provided by this agreement will end immediately."
12. The appellants, who were not represented at the hearing before the primary judge (their solicitor having sought to excuse herself before the hearing of the substantive proceedings commenced), relied principally on the defence of non est factum, which the primary judge found was not made out. The primary judge found that the appellants breached the agreement by not ceasing quarrying, not vacating the property and not removing chattels, plant and equipment.
13. The primary judge noted that the appellants (or at least Mr Hills) sought compensation from the respondent but held that there was nothing in the agreement which supported this claim. As a consequence, the primary judge granted the declaratory and injunctive relief as summarised above.
14. The appellants seek to have the orders made by the primary judge set aside. They do not, however, seek an order for damages (nor do they identify any basis on which damages would be payable to them). They have made no attempt to identify any basis on which it could be said that the appeal involves a "matter at issue amounting to or of the value of $100,000 or more." They have failed to file a certificate as required by UCPR, r 51.22(2).
15. Section 101(2)(r) of the Act is 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). As 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, it cannot be concluded that value of the matter at issue is $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).
16. The appeal is, accordingly, incompetent. Further, as can be seen from the narrative above, the appellants have, in effect, abandoned the appeal.
17. For these reasons, I made the following orders at the conclusion of the hearing on 29 April 2024: 1. Order pursuant to r 51.41(1) of the Uniform Civil Procedure Rules 2005 (NSW) dismissing the appeal as incompetent. 2. Order the appellants to pay the respondent's costs of the appeal and the costs of the notice of motion dated 26 March 2024.