DUNLOP v CUSTOM CREDIT CORPORATION LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE J 30 September 1991 [1991] NSWCA 83 Clarke JA This is a motion brought by an opponent, the successful plaintiff in the court below, seeking an order that the appeal be dismissed as incompetent and consequential cost orders. The basis of the application is that, in broad terms, the amount in issue is less than $10,000. The motion raises an interesting question as to the interpretation of s130(1)(a) of the District Court Act. The only relevant subsection in that section is subs(iv) which reads as follows: "130(1). An application under s127 may be made so an appeal under s128(1) or $128(2)A lies (a) where the application or appeal involves directly or indirectly any claim, demand or question to or respecting any property or any civil right amounting to or of the value of (iv) in the case of an action commenced on or after 1 April 1983 and in respect of which a verdict or judgment has not been given before the commencement of schedule 1(3) to the District Court (Amendment) Act, 1990 $10,000 or upwards." In this case the claimant sued the opponents as guarantors seeking to recover an amount outstanding, I assume at the time of the statement of claim, of $7,087.68. The trial judge found in favour of the claimant, which also sought interest. Although the trial judge was reluctant to award the claimant interest he felt that he was bound by authority to do so and he awarded interest at the rate specified in the lease agreement under which the guarantee arose. The total of the interest allowed was $3,300. Accordingly the trial judge entered judgment for the claimant against the opponent in the sum of $10,387.68. The essential question at issue is whether the court has regard only to the substantive claim in determining whether an amount in issue of more than $10,000 is involved, or whether one has regard to the amount of the judgment against which the appeal is brought. Before turning to consider that question, I should observe that both parties have consented to my dealing with the question which has arisen and have not sought to have the issue referred to a Full Bench. A more refined version of the question is whether in this case the appeal involves directly or indirectly a claim or demand respecting a civil right amounting to at least $10,000. The wording of sections such as s130 have often created difficulties and doubts concerning the determination of the amount in issue. Speaking for myself, and without reference to any authority, I prefer the view that where judgment is entered against an appellant in a sum in excess of $10,000, and in the appeal the appellant wishes to contend that there should have been judgment in his favour, the appeal which that appellant wishes to prosecute involves directly a claim respecting a civil right amounting to or of the value of $10,000 or more. 2 UNREPORTED JUDGMENTS However, Mr Anderson who argued the case for the claimant with consummate skill, took the court to its own decision in Wilton v Commonwealth of Australia, 12 Motor Vehicle Reports 243. In that case the court had to consider whether an appeal lay as of right when the verdict and judgment which had been entered were less than $5,000, which was the statutory level relevant at that time. The court, having heard argument, concluded that the trial judge had been in error in entering judgment in the sum of $3,000 and were of the opinion that a proper assessment of the claim which had been brought by the plaintiff should have led to a judgment in excess of $5,000. Kirby P, having referred to similar provisions in the Judiciary Act, 1903, said as follows: "The mere fact that the judgment in fact recovered is less than $5,000 is not determinative of the appellant's right. That is not the test by the statute. With greater equity the District Court Act calls attention to the issues at stake in the claim as made and as it ought properly to have been determined." I do not think, with respect, that this conclusion undermines the prima facie view that I formed. The section directs attention at the value of the claim involved in the appeal. Here, the question which will arise in the appeal is whether the judgment should stand and thereby the opponents be liable to pay the judgment in excess of $10,000 or whether it should be set aside completely. Although the opponent's grounds of appeal concern the manner in which his Honour dealt with a cross-claim, the conclusion that they seek is that the judgment be set aside. We have, therefore, a situation in which the court will be required to consider whether to uphold or set aside a judgment in excess of $10,000. To my mind that raises questions which involve an amount in excess of $10,000 and the appeal lies as of right. The opponents referred me to a decision in Graham v Proudfoot, 11 WN 91, which concerned the Privy Council Appeal rules. In that case a submission was made by the appellant that interest allowed by statute on a verdict must be considered in estimating the appealable amount. The Full Court, while expressing some doubt, upheld this submission. I am not clear as to the extent to which this authority supports the opponent, for the simple reason that the Rules which were in force in 1894, when the matter was argued, have not been put before me and as I have not reserved I have not got access to them. Nonetheless, it would seem to me that in broad terms the approach that was taken by the court on that occasion was the same as the approach which I think is the correct one. In this respect I am also of the opinion that where interest is allowed pursuant to the provisions of the document under which the liability of the appellant arises, the case is, if anything, stronger than where interest is allowable only under the statute. For these reasons I am of the opinion that the motion should be dismissed with costs.