Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coshott v Commonwealth Bank of Australia [2020] NSWCA 279 Hearing dates: 3 November 2020 Date of orders: 3 November 2020 Decision date: 05 November 2020 Before: Gleeson JA at [1] Simpson AJA at [47] Decision: Proceedings 2020/258148 (1) Extend the time for filing of the summons seeking leave to appeal to 4 September 2020. (2) That Robert Gilbert Coshott be joined as the second applicant to the summons seeking leave to appeal. (3) Grant leave to the applicants to file an amended summons seeking leave to appeal, in the form of the draft annexed to the applicants' submissions filed 29 October 2020. (4) The amended summons seeking leave to appeal be dismissed. Proceedings 2020/138632 (5) Dismiss the appeal purportedly commenced by notice of appeal filed 30 July 2020 as incompetent. (6) Make no order as to costs of the appeal or the notice of motion filed 9 October 2020. Catchwords: APPEALS – leave – where proceedings summarily dismissed – whether party using employed solicitor is entitled to recover costs – no question of principle – whether declaration sought hypothetical – unchallenged factual findings – whether injustice if leave refused Legislation Cited: Bankruptcy Act 1966 (Cth), ss 149, 149A, 153 Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), r 13.4, 51.41 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 93 ALJR 1007 Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Category: Principal judgment Parties: Ljiljana Coshott (First applicant) Robert Coshott (Second applicant) Commonwealth Bank of Australia (Respondent) Representation: Counsel: R Coshott (Applicant-in-person) M Hall (Respondent) Solicitors: L Coshott and R Coshott (Applicants-in-person) Dentons Lawyers (Respondent) File Number(s): 2020/258148; 2020/138632 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2020] NSWSC 503 Date of Decision: 6 May 2020 Before: Kunc J File Number(s): 2019/314716 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. GLEESON JA: Application is made by Ljiljana Coshott and Robert Coshott for leave to appeal against a judgment of Kunc J delivered on 6 May 2020 (Coshott v Commonwealth Bank of Australia [2020] NSWSC 503) summarily dismissing the proceeding below against the Commonwealth Bank of Australia (the Bank), in which the only relief sought was a declaration in the following terms: Declaration that the defendant is not entitled to indemnity under party and party costs orders for work performed by its in-house lawyers and staff. 1. On 30 July 2020, Ms Coshott and Mr Coshott filed a notice of appeal. 2. On 4 September 2020, Ms Coshott filed a summons seeking leave to appeal. 3. On 9 October 2020, the respondent Bank filed a motion seeking summary dismissal of both the summons and the appeal pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4, and dismissal of the appeal on the ground that it is incompetent: UCPR, r 51.41. 4. In their written submissions filed 29 October 2020 the Coshotts sought leave to file an amended summons joining Mr Coshott as the second applicant. The Bank did not consent or oppose such an order being made. 5. The Coshotts require leave to appeal under s 101(2)(e) of the Supreme Court Act 1970 (NSW) because the decision below is "an interlocutory judgment or order in the proceedings in the Court". It is well-established that an order for the summary dismissal made under UCPR, r 13.4 is an interlocutory order: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [11] (Allsop P, Tobias JA and Handley AJA). They also require an extension of time for filing of the summons seeking leave to appeal. 6. At the hearing on 3 November 2020, Mr Coshott appeared by telephone link and briefly addressed the Court, speaking also on behalf of Ms Coshott. At the conclusion of the hearing the Court made the following orders and reserved its reasons: Proceedings 2020/258148 1. Extend the time for filing of the summons seeking leave to appeal to 4 September 2020. 2. That Robert Gilbert Coshott be joined as the second applicant to the summons seeking leave to appeal. 3. Grant leave to the applicants to file an amended summons seeking leave to appeal, in the form of the draft annexed to the applicants' submissions filed 29 October 2020. 4. The amended summons seeking leave to appeal be dismissed with costs. Proceedings 2020/138632 (5) Dismiss the appeal purportedly commenced by notice of appeal filed 30 July 2020 as incompetent. (6) Make no order as to costs of the appeal or the notice of motion filed 9 October 2020. 1. My reasons for joining in those orders follow. Background 1. In 2003, Sorby DCJ dismissed certain District Court proceedings brought by the Coshotts against the Bank, with costs, and later gave judgment on a claim in favour of the Bank for a debt on a MasterCard account, plus costs. In 2004, this Court dismissed an appeal by the Coshotts with costs: Coshott v Commonwealth Bank of Australia [2004] NSWCA 189. 2. On 7 November 2008, Mr Coshott was made a bankrupt. The primary judge summarised the position with respect to that administration at J [14]-[19], which it is convenient to reproduce in full: [14] On 11 August 2011, the Bank lodged a proof of debt with Mr Coshott's trustee in bankruptcy (the "Trustee") seeking to prove for legal costs of $253,072.10. [15] On 27 September 2011, the Bank lodged a second proof of debt with the Trustee, seeking to prove an underlying judgment debt based on a MasterCard debt and interest in a total sum of $137,221.31 together with the costs incurred on that matter. [16] On 2 November 2011, the Trustee determined to admit the two proofs of debt in the sums of $201,529.19 and $115,028.65, totalling $316,557.84, and to reject the balance of the amounts CBA claimed (the "Partially Admitted Debts"). [17] On 23 November 2011, Mr Coshott filed an application seeking to review the Trustee's decision partially to admit CBA's proofs of debt. [18] On 27 April 2012, Rares J dismissed Mr Coshott's application: Coshott v Burke [2012] FCA 517 (the "Review Dismissal"). Mr Coshott did not appeal against the decision. [19] On 18 August 2015, Mr Coshott was discharged from bankruptcy by operation of law. 1. On 31 August 2017, the Bank's solicitors gave a written undertaking to the Coshotts' then solicitors as follows: Our client undertakes to refrain from enforcing the costs orders it has obtained against Ljiljana Coshott in District Court of New South Wales proceedings 1643 of 1996 and in New South Wales Court of Appeal proceedings 40863 of 2003. 1. On 9 October 2019, the Coshotts filed their summons below seeking declaratory relief as indicated. In contending that the Bank is not entitled to indemnity under the costs orders in respect of work performed by its in-house lawyers and staff, the Coshotts relied upon what they said was the effect of the High Court's recent decision in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 93 ALJR 1007 (Bell). 2. In Bell the majority held that the Chorley exception (London Scottish Benefit Society v Chorley (1884) 13 QBD 872) is an anomaly and should not be extended to the benefit of barristers undertaking legal work for themselves and making a claim for their costs of doing so. The joint judgment (Kiefel CJ, Bell, Keane and Gordon JJ) said that Chorley cannot be justified by the considerations of policy said to support it, and accordingly it should not be recognised as part of the common law of Australia: at [3]. Gageler J agreed at [63], Edelman J agreed at [93], whilst Nettle J dissented on this question at [70]. 3. The joint judgment said at [50]: A decision by this Court that the Chorley exception is not part of the common law of Australia would not disturb the well-established understanding in relation to in-house lawyers employed by governments and others, that where such a solicitor appears in proceedings to represent his or her employer the employer is entitled to recover costs in circumstances where an ordinary party would be so entitled by way of indemnity. 1. Gageler J was to similar effect as the plurality, explaining at [68]: Recovery of costs by a party using an employed solicitor predated introduction of the Chorley exception. The better view, explained in a number of cases to which the Supreme Court of New Zealand appears not to have been referred, is that recovery of costs by a party using an employed solicitor is an application of the general principle rather than an exception to it. The general rule is engaged on the basis that the costs of using the employed solicitor are still awarded as indemnity for professional legal costs actually incurred in the conduct of litigation by the employer who is a party to the litigation, albeit that those professional legal costs are incurred in the form of an overhead and are therefore not reflected in a severable liability. [Citations omitted.] 1. On 11 November 2019, the Banks' solicitors sent a letter to the applicants' solicitor which confirmed the Bank's undertaking given in August 2017: see [11] above. 2. On 15 November 2019, the Bank made application by notice of motion for orders which included an order pursuant to UCPR r 13.4 that the proceedings be dismissed on the basis that the summons failed to disclose a reasonable cause of action, alternatively the proceedings are frivolous or vexatious, alternatively the proceedings are an abuse of process of the Court. Primary judge's reasons 1. The primary judge gave two independent reasons for summarily dismissing the proceedings exercising his discretion pursuant to UCPR, r 13.4 on the grounds that the summons did not disclose a reasonable cause of action and was doomed to fail. First, the declaration sought was contrary to the common law of Australia, referring to Bell. Second, the declaration only raised a hypothetical or academic question such that the Court would never exercise its discretion to grant declaratory relief. 2. As to the first reason, the dispositive reasoning is summarised at J [37]: [37] Having regard to the foregoing analysis of Bell, the Court accepts the Bank's submissions that the declaration sought by the plaintiffs would never be made and the summons is bound to fail for three reasons: (1) It is part of the ratio decidendi of Bell that the abolition of the Exception leaves the entitlement to Employed Solicitor Costs as part of the law of Australia; (2) If the preceding conclusion is wrong, then this Court is nevertheless bound by those parts of the decision in Bell which discuss the continued entitlement to Employed Solicitor Costs as seriously considered dicta of a majority of the High Court; and (3) Assuming in favour of the plaintiffs that the issue that they actually wish to address is how Employed Solicitor Costs are to be assessed, then the Declaration does not invite an answer to that question. 1. His Honour said of (1) and (2), at J [40]-[43]: [40] It is apparent from the analysis of Bell set out above, that in reaching their conclusion that the Exception should not be part of the common law of Australia, five judges of the High Court (the plurality and Gageler J) expressly considered and approved as a necessary step in reaching that conclusion the proposition that abolition of the Exception would have no effect upon the entitlement to Employed Solicitor Costs. This might also be put as the proposition that the abolition of the Exception did not mean or require that the entitlement to Employed Solicitor Costs was also abolished. [41] However it might be expressed, having regard to the definition of ratio decidendi set out in the paragraph [39] above, it is clear that the continuation of the existence of the entitlement to Employed Solicitor Costs is part of the ratio decidendi of Bell and binding on all courts in Australia. The Declaration is therefore contrary to the common law of Australia and would never be made. [42] It follows, and insofar as it may be necessary the Court finds, that the law in this State remains as set out in the decision of Davies A-J (as it happens, concerning the Bank) in Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; (2001) 51 NSWLR 333. It is sufficient to quote the headnote that "Corporate employed solicitors are entitled to have their costs assessed on the same basis as that of independent solicitors exercising comparable skills in the performance of comparable work". [43] Second, if the conclusion expressed in the preceding two paragraphs is wrong, I alternatively determine that this Court is bound by the conclusion of five of the seven judges of the High Court that Employed Solicitor Costs continue to be recoverable despite the abolition of the Exception as "seriously considered dicta" by a majority of that Court and therefore binding on this Court: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [134] and [158]. [44] I should add that either of the conclusions I have just expressed means that this is not an example of a case where the claim should be permitted to continue because while a single judge may be bound to rule against it, it would be open to a higher court to find otherwise. On the view that I have taken of Bell, the Court of Appeal is also bound and, given the detailed consideration by the High Court, it is fanciful to think that Court would depart from its conclusions on Employed Solicitor Costs were special leave to be granted for an appeal from the Court of Appeal. 1. As to (3), his Honour said at [45]-[47]: [45] Finally, if I correctly understand the plaintiffs' argument set out in paragraphs [28] and [29] above to be that the issue which the plaintiffs in fact wish to agitate is how, after Bell, Employed Solicitor Costs are to be assessed or calculated, then I do not see how proceedings for the Declaration will give rise to a determination of that issue. There are at least two reasons for this. [46] First, argument about how Employed Solicitor Costs are to be assessed necessarily assumes an entitlement to such costs. That assumption is contrary to the terms of the Declaration. [47] Second, the plaintiffs have not demonstrated, and I cannot see how it could be so in any event, how these proceedings could be the vehicle for determining - directly or incidentally - how such costs are to be assessed or calculated. As the plaintiffs' submissions accept, there has been no assessment of those costs. Nor have they demonstrated how, after all this time, any such assessment could occur. There is no evidence that the Bank or anyone else is about to precipitate anything that would require such an assessment and, by reason of the Bank's Undertaking, there is clear evidence to the contrary in relation to Mrs Coshott. 1. As to the second reason, the dispositive reasoning is contained at J [55] – [58]: [55] The Court accepts the Bank's submissions in relation to both plaintiffs. The Coshotts do not have the requisite interest in the determination of the question posed by the Declaration. As a corollary, the Declaration raises a purely hypothetical or academic question. The Court is therefore satisfied to the standard of certainty required for summary dismissal, that even if it reflected the law (which the Court does not accept), the Declaration would never be made. [56] Before turning to the plaintiffs' specific submissions, there are two general reasons why the Court has reached this conclusion. [57] First, the plaintiffs' submissions in answer to the Bank's arguments of lack of standing and hypotheticality have an overwhelming quality of unreality and speculation. If the Bank or someone else (most likely the Trustee or his successor) was in fact taking, or had even just threatened, steps of any kind against either of the plaintiffs that would require determination of the Declaration, the plaintiffs would undoubtedly have filed evidence about it. The fact that they have not filed any such evidence is the primary basis on which the Court finds that there is no actual extant controversy, or even a foreseeable prospect of such a controversy, relating to either of the plaintiffs that is required to be quelled by the making of the Declaration. That conclusion is also supported by the lack of any consequential relief in the summons; that only the Bank and not, for example, the Trustee or his successor is joined; and, that nearly five years have passed since Mr Coshott's discharge from bankruptcy. In relation to Mrs Coshott that finding is also made in reliance on the Bank's Undertaking. [58] Second, what I have said in paragraphs [45] to [47] above applies equally to this part of the argument as reasons why the Declaration would never be made, even if the plaintiffs had standing and the question was not hypothetical. 1. His Honour then addressed and rejected various arguments advanced by the Coshotts as to why there is nothing hypothetical about the "resolution of the legal dispute between the parties in this case". As the Coshotts repeat these arguments on the present application, it is convenient to reproduce his Honour's reasons at J [60]-[61] and [64]-[67]: [60] … As I have already said, the difficulty for the plaintiffs is that they have advanced no evidence of any extant legal dispute between them and the Bank which requires resolution, let alone a resolution which will be achieved by making the Declaration. [61] In paragraph 27 of their submissions, the plaintiffs then referred to "The question as to the appropriate legal basis upon which the [Bank] can quantify the debt of the Plaintiffs' owed jointly and severally to it pursuant to extant orders of the District Court and Court of Appeal, which have not been compromised or otherwise discharged, are obviously not purely hypothetical". Again, however, there is no basis on which the Court can conclude as a matter of fact that the Bank or anyone else wants to, or needs to, quantify the debt of the plaintiffs in the way they suggest so as to create a legally cognisable dispute. … [64] In relation to Mrs Coshott, the plaintiffs submitted (plaintiffs' submissions, paragraph 30) that "the consequences of the appropriate legal method for the quantification of the Court orders provides the basis for indebtedness to the [Bank]. Regardless of whether steps are taken to enforce that debt, it will hang over her and remain an obligation imposed on her by a court order". She was thereby said still to have an interest. I accept that the Bank's Undertaking is complete answer to this submission. Furthermore, these proceedings do not challenge either the "basis for indebtedness" or the "court order" in question. [65] Next, the plaintiffs submitted that what they referred to in paragraph 31 of their submissions as "the clarification of the legal basis for the debt" would be necessary for any later claim by Mr Coshott's trustee in bankruptcy against Mrs Coshott, based on her joint indebtedness to the Bank. This argument does not demonstrate any sufficient legal interest in the Declaration or lack of hypotheticality when there is no evidence that any claim by the Trustee or his successor against Mrs Coshott is in contemplation or even likely. [66] Finally, the plaintiffs referred in paragraphs 32 and 33 of their submissions to the desirability of the "correction" of the basis of the claim submitted by the Bank to the Trustee which remains unsatisfied from Mr Coshott's bankrupt estate both as a matter as between the Bank and Mr Coshott, and in relation to the subsequent entitlement of Mr Coshott to any residue from his bankrupt estate after the declaration and payment of dividends to his creditors. However, again, there is no evidence concerning the administration of Mr Coshott's bankrupt estate including whether or not a dividend has been declared and whether or not the debts remain unsatisfied. [67] For these reasons, the Court concludes that even if the Declaration represented the law, the plaintiffs have failed to demonstrate a legally cognisable interest in its resolution which rises above academic or theoretical, or that the Declaration is required to quell a legal controversy that is actual or in prospect. The Declaration is hypothetical, such that in accordance with the principles set out in paragraph [49] above, it is not a declaration which in the exercise of its discretion the Court would ever make. Leave to appeal 1. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is not sufficient merely to show that the trial judge was arguably wrong: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], citing among others, Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]. 2. In the present case, the proposed appeal raises no issue of principle or question of general public importance. The question determined by Kunc J was whether he should exercise his discretion to dismiss the proceedings under UCPR, r 13.4. The order of Kunc J was interlocutory, and as explained in Macatangay v State of New South Wales (No 2) at [11]: It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppel. 1. The sole ground of appeal challenging that order is: The primary judge erred in summarily dismissing the proceedings on the ground that it was doomed to fail. 1. That ground as expressed does not identify any error. 2. The Coshotts' written submissions asserted that the primary judge made three errors: first, that his Honour incorrectly interpreted the declaration sought; second, that his Honour erred in finding that the decision in Bell entitled a corporation to recover under a party / party costs order for work done by in-house lawyers and staff in the conduct of litigation; third, that his Honour erred in finding that the question sought to be determined by the declaration was hypothetical. The terms of the declaration 1. The first asserted error involves a misreading by the Coshotts of the declaration sought. As the Coshotts submitted in writing (par 6), the declaration seeks an answer to the question as to whether the Bank "is entitled under the party / party costs orders to recover professional legal costs for work performed by its in-house (employed) lawyers and staff" [emphasis added]. His Honour did not misinterpret the declaration. 2. In oral argument, Mr Coshott complained that his Honour had misunderstood the declaration as also raising an argument about how employed solicitor costs are to be assessed or calculated, which his Honour addressed at J [45]-[47] (see [21] above). I do not agree. The assessment or calculation argument was directly raised by the Coshotts' submissions below at pars 15 and 18, where it was argued that Bell has changed the way in which self-represented parties can claim costs for work done by lawyers employed by them. Bell 1. As to the second asserted error, whether or not the remarks in the joint judgment in Bell at [50] and Gageler J at [68] (see [14] and [15] above) are properly read as part of the ratio or constituted seriously considered dicta of the High Court binding on his Honour and any intermediate appeal court, the primary judge was not arguably wrong in finding that the terms of the declaration sought were contrary to law. Nothing in Bell casts doubt on the entitlement of a party using an employed solicitor to recover costs under a party / party costs order. The declaration was hypothetical 1. As to the third asserted error that the declaration sought is hypothetical, the Coshotts have not established any injustice. As indicated this was an independent reason for his Honour's decision. 2. Counsel for the Bank emphasised that there was no challenge to his Honour's factual finding at J [57] that there is no actual extant controversy, or even a foreseeable prospect of such a controversy, relating to either of the Coshotts that is required to be quelled by the making of the declaration. Given that unchallenged finding, there is no injustice to the Coshotts in dismissing the proceedings on the basis that the declaration is hypothetical: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; [1992] HCA 10; JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 at 466 (King CJ). 3. In their written submissions (pars 16-23), the Coshotts repeated their submissions advanced below that the declaration sought is not hypothetical. Each of those matters was answered by his Honour's reasons at J [60]-[61] and [64]-[67], which are set out above at [23]. None of the reasons given by his Honour for rejecting the Coshotts' submissions have been shown to be arguably wrong. 4. I would add the following observations in relation to the individual positions of Ms Coshott and Mr Coshott. 5. As to Ms Coshott, the declaration sought did not challenge the basis for liability or the costs orders made by the District Court and this Court. What was sought to be impugned was the quantum of that liability, which is contingent on an assessment of the costs orders. Given that the Bank has not taken any step with respect to assessment of the costs orders and has also given an undertaking not to enforce the costs orders against Ms Coshott, the declaration is hypothetical. 6. As to Mr Coshott, there is no challenge to his Honour's finding concerning the combined effect of the discharge from his bankruptcy by operation of law under the Bankruptcy Act 1966 (Cth), ss 149 and 149A, and the costs orders being provable debts in his bankruptcy (with no revocation of the trustee's decision or appeal from the decision of Rares J): J [51(5)], [55]. Given that Mr Coshott was released from the debts created by the costs order by operation of s 153 of the Bankruptcy Act again the declaration is hypothetical. 7. One further matter should be mentioned relating to Mr Coshott's position. The primary judge did not find it necessary to address the Bank's additional submission that there is an issue estoppel or an Anshun estoppel arising from the dismissal by the Federal Court of Mr Coshott's challenge to the trustee's decision to admit the Bank's proof of debt for costs in the sum of $201,529.19. 8. As to issue estoppel, the judicial decision of Rares J dismissing Mr Coshott's challenge to the decision of his trustee-in-bankruptcy to partially admit the Bank's proof of debt based on the costs orders was final and the parties to that decision, Mr Coshott and the Bank, are the same persons as the parties to the declaratory proceedings in which the estoppel is raised: Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 at [110] (Bathurst CJ). 9. Prima facie, there is no injustice in not permitting Mr Coshott to make a collateral attack in the Supreme Court on the final decision of Rares J in the Federal Court. Not having appealed against the decision of Rares J, the quantum of Mr Coshott's liability to the Bank under the costs orders is established for the purposes of the administration of his bankrupt estate. The declaration sought below would directly conflict with the decision of Rares J. However, it is not necessary to express any concluded view on the question of issue estoppel as this point was not relied upon by the Bank in this Court by way of a foreshadowed notice of contention. 10. I conclude that leave to appeal should be refused. Costs 1. As to costs, the Bank did not seek any order for costs of the summons for leave to appeal. The position taken by the Bank reflects a generous attitude in dealing with the Coshotts as litigants in person; it was also consistent with the approach of the Bank in giving Ms Coshott the undertaking referred to above not to enforce the costs orders. Notice of appeal 1. UCPR, r 51.41 provides: 51.41 Objections to competency of appeal (cf SCR Part 51, rule 25) (1) A respondent who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 28 days after service on the respondent of the notice of appeal, apply to the Court for an order dismissing the appeal as incompetent. (2) If the respondent fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent— (a) the respondent is not entitled to costs of the appeal unless the Court otherwise orders, and (b) the Court may order the respondent to pay the appellant any costs of the appeal proving useless or unnecessary. 1. Given that leave to appeal is required and should be refused, the purported appeal is incompetent and should be dismissed on that basis. Costs 1. As to costs of the appeal, the Bank's objection to the competency of the appeal by notice of motion filed 9 October 2020 was not made within 28 days after service on the Bank of the notice of appeal. In these circumstances the Bank is not entitled to costs of the appeal unless the Court orders otherwise: UCPR, r 51.41(2)(a). It is not necessary to address whether a different order should be made, because the Bank did not seek an order for costs of the appeal or the motion filed 9 October 2020. 2. Accordingly, no order should be made as to the costs of the appeal or the Bank's notice of motion filed 9 October 2020. 3. SIMPSON AJA: The reasons given by Gleeson JA also express my reasons for joining in the orders of 3 November 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2020