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The appeal arose from a Supreme Court decision, May v Costaras [2025] NSWSC 90. Lindsay J had held that the property was held on trust, two-thirds for May and one-third for Costaras [2]. May’s notice of appeal, filed on 4 April 2025, sought principally a declaration that all of Costaras’s interest was subject to a resulting trust in his favour [3].

Costaras raised several competency objections. First, she said the appeal was out of time, arguing that the relevant date was the date of judgment, 25 February 2025. Second, she argued that s 101(2)(r) of the Supreme Court Act 1970 (NSW) required leave because the value threshold was met. She also raised other matters, including an apparent suggestion that the proceeding should be transferred to the Federal Circuit and Family Court of Australia, allegations that May had not complied with orders or directions, and substantive grounds on which she sought dismissal [6]–[11].

The Court rejected the time objection because the relevant date was when the orders were made, 10 March 2025, rather than the date of judgment [6]. It rejected the leave objection because the evidence supported a value above the $100,000 threshold for the claim in issue [8]–[9]. It did not determine the substantive merits of the appeal.

Why the court decided this way

The Court first addressed its authority to hear the competency motion. It stated that a single judge of appeal could determine the motion, relying on Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15] [4]. Although the motion was filed outside the 28 days specified in UCPR r 51.41, the judge considered it could still be determined, citing AB v State of New South Wales [2014] NSWCA 243 at [8]. The late filing could nevertheless have costs implications [5].

On timing, the judge rejected the respondent’s choice of date. The notice of appeal was directed to orders made on 10 March 2025. The respondent relied instead on the judgment date, 25 February 2025. The Court said that was “plainly wrong”: under UCPR r 51.2, the material date was the date the orders were made [6]. The ruling is therefore tied to the procedural distinction between delivery of reasons or judgment and the making of orders in this case.

The principal question was whether leave was required under s 101(2)(r) of the Supreme Court Act 1970 (NSW). The provision, as described in the judgment, requires leave where the appeal concerns a judgment or order involving a matter at issue, claim, demand or question concerning property or a civil right at or above $100,000 [7]. The judge said it was sufficient to focus on the second requirement, referring to Oertel v Crocker (1947) 75 CLR 261 and Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 [8].

The central valuation proposition was explicit: “The relevant issue is the value of the claim rather than the value of the property to which the claim relates” [8]. The judge then assessed the evidence. A document called “Property occupations Form 6”, admitted as Exhibit A, stated a reserve price of $330,000. Costaras confirmed in oral address that she had inserted the figure. She also said the property was scheduled for auction in late June and that an offer of $290,000 had been received [8].

The Court treated $330,000 as the best evidence of the value of the whole property. It then considered one-third of that value, which it described as representing the appellant’s claim, and found that the amount exceeded the statutory minimum [8]. The judgment’s description should be read closely: it records that the primary judge had declared the interests two-thirds for May and one-third for Costaras, while the appeal sought to affect Costaras’s interest [2]–[3]. The ruling’s operative valuation conclusion was that the one-third amount in issue exceeded $100,000.

The respondent’s suggested deductions for sale disbursements did not alter the result. The judge saw no basis to deduct them “in the absence of any supporting evidence” [9]. This is an evidentiary point specific to the record before the Court, rather than a general finding that sale expenses can never matter when assessing value. On the evidence presented, leave was not required and the appeal was competent [9].

The Court also dealt briefly with the other objections. Transfer to the Federal Circuit and Family Court of Australia was described as inappropriate because that court lacked jurisdiction to hear the appeal and, so far as the Court knew, there were no proceedings on foot there [10]. The alleged breaches of orders and directions were not supported by convincing evidence and were given no weight [10]. Substantive objections to the appeal were matters for the Court that would hear the appeal [11]. The motion was dismissed, with costs payable by Costaras [13].

Before and after state of the law

The judgment does not purport to change the law. It applies the statutory appeal threshold and procedural rules to the facts and evidence before it. Its discussion of s 101(2)(r) is framed as an application of existing authority, referring to Oertel v Crocker and Jabulani Pty Ltd v Walkabout II Pty Ltd for the focus on the value of the claim rather than the value of the related property [8].

Before this ruling, the relevant questions, as presented in the motion, were whether the appeal fell outside the time limit and whether the monetary threshold made leave necessary. The Court resolved the first by applying UCPR r 51.2 to the date the orders were made, rather than the date of judgment [6]. It resolved the second by assessing the claim’s value using the available evidence, including the reserve price in Exhibit A [8]–[9].

After the ruling, the appeal was treated as competent and able to proceed without leave. That does not determine whether May’s appeal will succeed on its substantive merits. The judgment expressly reserves substantive grounds for the Court hearing the appeal [11]. Nor does it establish a general method for valuing every claim involving property: the reasons rely on the statutory language, cited authorities, and the particular evidence available in this case.

The judgment also confirms, by reference to AB and Macatangay, that the judge could determine a late competency motion. It notes that late filing may have costs implications, but does not make a general finding about how those implications will apply in other cases [4]–[5].

Key passages with plain-English translation

At [6], the judge states: “The ‘material date’ is the date that orders were made, being 10 March 2025.” In plain English, for the timing argument made in this motion, the date the Court formally made the orders mattered, not the earlier date on which judgment was given.

At [8], the judge states: “The relevant issue is the value of the claim rather than the value of the property to which the claim relates.” In plain English, the statutory threshold was assessed by identifying what the claim itself was worth, rather than automatically treating the whole property’s value as the value of the claim.

Also at [8], the judge identifies a reserve price of $330,000 in the Property occupations Form 6 and says that one-third of that value exceeded the threshold. In plain English, the document and Costaras’s confirmation of the figure supplied evidence supporting the Court’s valuation of the interest in issue.

At [9], the judge says there was no basis, without supporting evidence, to deduct sale disbursements. In plain English, the Court would not reduce the threshold calculation for costs associated with the sale when the motion did not provide evidence supporting those deductions.

Finally, at [9], the judge concludes that “leave to appeal is not required, and the appeal is competent.” This resolved the competency motion, not the underlying dispute about the parties’ trust interests.

What fact patterns trigger this precedent

The ruling is most directly relevant to an appeal competency challenge where a party argues that the appeal was filed out of time by counting from the judgment date, although the orders were made later. The date distinction mattered because the judgment applied UCPR r 51.2 to the orders made on 10 March 2025 [6].

It is also relevant where s 101(2)(r) is invoked in an appeal involving a property-related claim. The judgment directs attention to the value of the claim, not simply the total value of the property [8]. Here, the record contained a stated reserve price, confirmation from the person who entered it, and no supporting evidence for proposed deductions [8]–[9].

The decision may also be relevant to motions filed after UCPR r 51.41’s 28-day period. The Court held that lateness did not prevent determination of this motion, while noting possible costs implications [5]. The ruling does not specify a general test for excusing delay or decide what costs result in every late-motion case.

Its relevance is limited where the evidence differs. The Court called the reserve price the best evidence on this record and declined deductions because they were unsupported. It did not decide how to value a claim where there are competing valuations, evidence of liabilities or sale expenses, or a different kind of property interest.

How later courts have treated it

The judgment itself contains no account of how later courts have treated May v Costaras [2025] NSWCA 128. The material supplied identifies the decision date as 2 June 2025 and records the authorities considered by Griffiths AJA, but contains no subsequent decisions citing or applying this ruling.

The authorities discussed in this judgment are not later treatments of it. They are earlier cases: Macatangay v State of New South Wales (No 2), cited for a single judge’s power to determine the motion [4]; AB v State of New South Wales, cited for determining a motion filed outside the 28-day period [5]; and Oertel v Crocker and Jabulani Pty Ltd v Walkabout II Pty Ltd, cited in relation to the value threshold [8]. The reasons do not set out those cases’ broader facts or reasoning, so no further account of their holdings can safely be drawn from this judgment alone.

The ruling is a procedural decision about competency. It does not report a later appellate history, nor does it say whether the underlying appeal was ultimately heard or what happened to it.

Still-open questions

The judgment does not resolve the substantive question in May’s appeal: whether Costaras’s interest was subject to a resulting trust in May’s favour. It expressly says that substantive grounds raised in the motion belonged before the Court hearing the appeal [11].

The reasons also do not explain in detail how the precise “claim” was characterised for valuation beyond applying the one-third figure to the $330,000 reserve price. The judgment records both the primary judge’s two-thirds/one-third division and the appeal’s request concerning Costaras’s interest [2]–[3]. The valuation conclusion is clear, but the reasons do not provide a broader analysis of how different forms of relief might affect valuation under s 101(2)(r).

Other questions remain outside the decision: what evidence would justify deductions for sale expenses; how the threshold should be assessed if the property value is disputed; and how lateness of a competency motion affects costs in different circumstances. The judge decided only that there was no supporting evidence for deductions in this motion and that the late motion could still be determined [5], [9].

The respondent’s transfer suggestion and allegations of non-compliance were disposed of briefly on the record presented [10]. The judgment does not consider the merits of any possible proceedings in another court or make a substantive determination about alleged breaches. The order is confined to dismissal of the competency motion and costs [13].

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.