Australia, Aug. 4 -- New South Wales Land and Environment Court issued text of the following judgement on July 4:

1. Each of the respondents to this appeal has filed a notice of motion seeking an order pursuant to r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) dismissing the appellant's notice of appeal, filed on 13 May 2025, on the basis that the appeal is incompetent.

2. The subject of the appeal is two decisions of Cole DCJ in proceedings that the appellant commenced against the respondents, who were his legal advisers during a dispute with an Owners Corporation. That dispute settled before trial in 2014 on terms that were documented, first, in a heads of agreement and, then, in a settlement deed. For present purposes it is sufficient to note that in broad terms the appellant alleged that the respondents were negligent when advising him about the proposed terms of settlement in the heads of agreement, and in failing to disclose a reasonable estimate of legal costs payable by him if the proceedings settled.

3. After the respondents filed defences in the matter they each filed a notice of motion seeking summary dismissal or, in the alternative, that the statement of claim be struck out on the basis that it failed to identify a complete cause of action. In the first decision that is the subject of the notice of appeal, Byrne v Turner Freeman Lawyers and Casselden [2025] NSWDC 5 (the Principal Judgment), the primary judge acceded to those applications and made the following orders:

"(1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 14.28, the Statement of Claim filed on 31 May 2024 (Statement of Claim) is struck out.

(2) Pursuant to UCPR r 13.4(1)(b) these proceedings are dismissed."

4. In her Honour's second decision, Byrne v Turner Freeman Lawyers and Casselden (No 2) (Costs) [2025] NSWDC 88, her Honour ordered that the appellant pay the respondents' costs of the proceedings on an indemnity basis (Costs Judgment).

5. On 12 March 2025, the appellant filed a notice of intention to appeal from the Principal Judgment, amending that notice on 10 April 2025 to include the Costs Decision. The notice of appeal was filed on 13 May 2025.

6. Rule 51.41 of the UCPR, on which both respondents rely, provides as follows:

51.41 Objections to competency of appeal

(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.

7 The respondents filed their respective notices of motion within the time stipulated in r 51.41(1) (the first respondent filed an amended notice of motion with leave to correct the applicable rule). The affidavits of the respondents' respective solicitors that were filed in support of the applications (for the first respondent, an affidavit of Baron David Alder sworn 26 May 2025 and, for the second respondent, an affidavit of Alexandra Elizabeth Bartlett affirmed 27 May 2025) annexed correspondence between the parties' legal representatives about the competency or otherwise of the appeal. The appellant relied on an affidavit of his solicitor, Gabriel Hernandez, sworn 19 June 2025, which provided various documents from the proceedings below.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197ce230cd231e35443a4436)

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