New South Wales Court of Appeal CITATION: Arabi v Glad Cleaning Service Pty Limited [2009] NSWCA 417 HEARING DATE(S): 14 December 2009 JUDGMENT DATE: 14 December 2009 JUDGMENT OF: Hodgson JA at 1 EX TEMPORE JUDGMENT DATE: 14 December 2009 DECISION: Notice of motion dismissed, and the costs of the notice of motion to be costs in the appeal. CATCHWORDS: APPEAL - Procedure - Purported appeal as of right - Whether affidavit satisfies UCPR 52.22. LEGISLATION CITED: UCPR 51.22 CATEGORY: Procedural and other rulings Taleb ARABI (appellant) PARTIES: GLAD CLEANING SERVICE PTY LIMITED ACN 054 617 891 (first respondent) CPT CUSTODIAN PTY LIMITED ACN 077 870 243 (second respondent) FILE NUMBER(S): CA 40320/09 COUNSEL: M DALEY (opposing party/ appellant) J SLEIGHT (applicant/respondent) Brydens Law Office ( appellant) SOLICITORS: Wotton & Kearney (first respondent) Thompson Cooper Lawyers (second respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 4657/07 LOWER COURT JUDICIAL OFFICER: Goldring DCJ LOWER COURT DATE OF DECISION: 4 June 2009 - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40320/09 HODGSON JA Monday 14 DECEMBER 2009 Taleb ARABI v GLAD CLEANING SERVICE PTY LIMITED and 1 ORS Judgment 1 HIS HONOUR: This is an application for an order that an appeal be dismissed as incompetent. The application is brought out of time and in circumstances where a number of procedures in the appeal have been undertaken. I am not certain that it would have been appropriate to extend the time for making the application although, as pointed out by Mr Sleight, it is better that such an application be made late but before the hearing, rather than the question of competence or incompetence of the appeal arising for the first time at the hearing. 2 In my opinion, the original affidavit supporting an appeal as of right was inadequate. It referred merely to the claims for damages made at first instance. Mr Daly has sought to explain this by pointing out that the first instance judgment was not available at the time. However, in my opinion, even if the first instance judgment is not available, some better effort should be made to comply with UCPR 51.22 and provide an affidavit that does show an evidentiary basis for the assertion that more than $100,000 is in issue; and if such an attempt is really impossible because of lack of availability of the primary judge's judgment, then that should be not only referred to in the affidavit, but what should then happen is a supplementary affidavit put on as soon as it is possible to provide a satisfactory affidavit. 3 In an affidavit provided for this application sworn 10 December 2009, there is some evidentiary basis shown for the contention that $100,000 is in issue. Mr Sleight has criticised this material on the basis that it involves assertions and very brief summaries of the evidence rather than, for example, annexing doctors' reports. There is some force in that, but, on the whole, I think the present affidavit does do enough to show that there is over $100,000 in issue in the appeal. 4 For that reason, I propose to dismiss the notice of motion. I also propose to make the costs of the notice of motion costs in the appeal because, although this application was brought late, the fact does remain that the original affidavit was inadequate. 5 For those reasons the orders I make are: notice of motion dismissed, and the costs of the notice of motion to be costs in the appeal. oOo 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.