AGRICULTURAL AND RURAL FINANCE PTY LTD v KIRK [2010] NSWCA 132

New South Wales Court of Appeal

CITATION: AGRICULTURAL AND RURAL FINANCE PTY LTD v KIRK [2010] NSWCA 132

HEARING DATE(S): 31 May 2010

JUDGMENT DATE: 31 May 2010

JUDGMENT OF: Basten JA at 1

EX TEMPORE JUDGMENT DATE: 31 May 2010

(1) The appeal brought as of right is dismissed as incompetent, but without prejudice to the applicant's right to seek leave to appeal from the judgment of Einstein J setting aside service of the proceedings on the respondents. (2) Dispense with the requirement for the filing of a summons to seek leave to appeal, together with a white folder, and treat the amended notice of motion dated 26 May 2010 as the application for leave to appeal. (3) Grant leave to the applicant to file, if so advised, an amended draft notice of appeal by Monday, 7 June 2010. DECISION: (4) Direct that the respondents file and serve their written submissions on the substantive issues on the appeal by Monday, 28 June 2010. (5) Direct that the applicant file and serve any written submissions in reply by Monday, 12 July 2010. (6) Direct that the written submissions together with the written summaries of argument, and, if necessary, any amended draft notice of appeal be included in an orange book. (7) Order that the applicant pay the respondents' costs of the objection to competency, including the costs of today.

CATCHWORDS: PROCEDURE - civil - appeal from order setting aside service on defendant - whether interlocutory - requirement for leave - Supreme Court Act 1970 (NSW), s 101(2)(e) - PROCEDURE - civil - application for leave to appeal and appeal - concurrent hearings - criteria of cost, delay, likelihood of significant saving in hearing time - likelihood of refusal of leave - Uniform Civil Procedure Rules 2005 (NSW), r 51.14(1)(b)