NEW SOUTH WALES COURT ISSUES JUDGEMENT ON MICHAEL MAY V/S LILA COSTARAS CASE

Australia, July 2 -- New South Wales Land and Environment Court issued text of the following judgement:

1. By notice of motion filed 16 May 2025, the respondent to the appeal challenges the competency of the appeal, as she is entitled to do under r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

2. The appeal is from the decision of Lindsay J in May v Costaras [2025] NSWSC 90. His Honour held that a property was held on trust by the parties in the proportions of two-thirds for the now appellant and one-third for the now respondent.

3. By a notice of appeal filed 4 April 2025, the appellant appeals against the orders of Lindsay J made on 10 March 2025. The primary relief sought by the appellant is a declaration that the whole of the respondent's interest in the property is subject to a resulting trust in favour of the appellant.

4. The objection to competency came before me today as Referrals Judge. It is clear that I have the power as a single judge of appeal to determine the motion (see Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15]).

5. It is equally plain that, although the motion objecting to competency was filed outside the 28 days specified in UCPR r 51.41, the motion may still be determined (see AB v State of New South Wales [2014] NSWCA 243 at [8]), although the late filing may have costs implications.

6. Both parties filed outlines of written submissions on 30 May 2025. The first matter raised by the respondent is that the appeal was filed out of time on the basis that the "material date" is the date of the judgment (i.e. 25 February 2025). That is plainly wrong. The "material date" is the date that orders were made, being 10 March 2025 (see r 51.2).

7. The second basis for the claim of incompetency relates to s 101(2)(r) of the Supreme Court Act 1970 (NSW) and whether the appeal is from a judgment or order that involves a matter at issue amounting to or of the value of $100,000 or more, or that involves "directly or indirectly" any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more. If either of those provisions apply, leave to appeal is required.

8. It is sufficient to focus on the second requirement (see Oertel v Crocker (1947) 75 CLR 261 and the decision of this Court in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267). The relevant issue is the value of the claim rather than the value of the property to which the claim relates. As noted above, the primary judge held that the property was held on trust in the proportions of two-thirds for the appellant and one-third for the respondent. According to a document entitled "Property occupations Form 6", which was put into evidence by the appellant and became "Exhibit A" in the proceeding, the reserve price for the property was stated to be $330,000. Ms Costaras confirmed in oral address that she had inserted that figure into that form, although she also said that the property was scheduled to be auctioned in late June this year, and that an offer of $290,000 had been received. The figure of $330,000 being the reserve price is the best evidence of the value of the whole property, and necessarily therefore one-third of that value, representing the appellant's claim, exceeds the minimum cap.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19742aa67cb4c3d0109acd18)

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