Eliezer v Yang - [2021] NSWCA 220

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Eliezer v Yang [2021] NSWCA 220
Hearing dates: 3 September 2021
Date of orders: 16 September 2021
Decision date: 16 September 2021
Before: Meagher JA; Brereton JA
Decision:
(1) Dismiss summons seeking leave to appeal filed 8 February 2021.
(2) Order the applicant pay the respondents’ costs of the proceeding.

Catchwords:
APPEAL – leave to appeal – where application under UCPR, r 36.15 to set aside costs orders made in earlier interlocutory proceedings – where primary judge made one of the costs orders sought to be varied – where primary judge refused to disqualify himself for apprehended bias – where r 36.15 application dismissed – where challenges to those orders have no realistic prospects of success – leave to appeal refused

Legislation Cited:
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules2005 (NSW), r 36.15(1)

Cases Cited:
Choi v University of Technology Sydney (No 2) [2020] NSWCA 342
Coles v Burke (1987) 10 NSWLR 429
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Category: Principal judgment
Parties: Supriya Eliezer (applicant)
Wanqlang Yang (fourth respondent)
Meimei Xie (fifth respondent)
Zhisheng Duan (sixth respondent)
Wei Li Yu (seventh respondent)
Xin Wang (eight respondent)
Ping Kwan Lo (ninth respondent)
Leng Lin Leong (tenth respondent)
Representation:
Counsel:
Applicant in person
J Li (solicitor) (respondents)
Solicitors:
Applicant in person
J Li (respondents)

File Number(s): 2020/342366
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

[2020] NSWSC 1596

Date of Decision:

05 November 2020

Before:

Garling J

File Number(s):

2015/123687

Judgment

THE COURT: The applicant (Ms Eliezer) seeks leave to appeal from two orders made by the primary judge (Garling J) on 5 November 2020. On that day his Honour heard and determined Ms Eliezer’s notice of motion filed on 18 August 2020 (Eliezer v The Owners – Strata Plan No 5162 [2020] NSWSC 1596). That motion sought an order pursuant to Uniform Civil Procedure Rules2005 (NSW) (UCPR), r 36.15(1) that earlier orders for costs made in the underlying proceedings on 22 March 2017 (N Adams J), 9 May 2017 (Johnson J) and 15 June 2017 (Garling J) be varied such that those orders not apply in favour of the second to eleventh defendants in the underlying proceedings. That variation, if made, would have left Ms Eliezer liable for the costs of the first defendant owners corporation in proceedings in which the remaining responding parties had common as well as separate interests to defend. Garling J dismissed the application and, in the course of doing so, rejected Ms Eliezer’s application that he disqualify himself from hearing it (Eliezer v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eliezer v Yang

Details

AGLC: Eliezer v Yang [2021] NSWCA 220
Case: [2021] NSWCA 220
Decision Date: 16 September 2021

CaseChat Overview and Summary

The applicant, Eliezer, sought leave to appeal from decisions of a primary judge concerning costs orders made in interlocutory proceedings. The primary judge had made one of the costs orders that Eliezer sought to have varied, and had also refused to disqualify himself from hearing the matter due to apprehended bias. Eliezer's application to set aside these costs orders, made under rule 36.15 of the Uniform Civil Procedure Rules, was dismissed by the primary judge.

The Court of Appeal was required to determine whether Eliezer had demonstrated that his challenges to the primary judge's decisions had realistic prospects of success, which is the threshold for granting leave to appeal under rule 36.15. This involved considering whether the primary judge erred in making the costs orders, in refusing to disqualify himself for apprehended bias, or in dismissing the application to set aside the costs orders.

Meagher and Brereton JJA found that Eliezer's challenges to the primary judge's decisions lacked realistic prospects of success. Consequently, the Court refused to grant leave to appeal. The Court ordered that Eliezer pay the respondents' costs of the proceeding.

Orders

Orders of the court

(1) Dismiss summons seeking leave to appeal filed 8 February 2021.

(2) Order the applicant pay the respondents’ costs of the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Eliezer v Yang [2021] NSWCA 220
Hearing dates:	3 September 2021
Date of orders:	16 September 2021
Decision date:	16 September 2021
Before:	Meagher JA; Brereton JA
Decision:	(1) Dismiss summons seeking leave to appeal filed 8 February 2021. (2) Order the applicant pay the respondents’ costs of the proceeding.
Catchwords:	APPEAL – leave to appeal – where application under UCPR, r 36.15 to set aside costs orders made in earlier interlocutory proceedings – where primary judge made one of the costs orders sought to be varied – where primary judge refused to disqualify himself for apprehended bias – where r 36.15 application dismissed – where challenges to those orders have no realistic prospects of success – leave to appeal refused
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules2005 (NSW), r 36.15(1)
Cases Cited:	Choi v University of Technology Sydney (No 2) [2020] NSWCA 342 Coles v Burke (1987) 10 NSWLR 429 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Category:	Principal judgment
Parties:	Supriya Eliezer (applicant) Wanqlang Yang (fourth respondent) Meimei Xie (fifth respondent) Zhisheng Duan (sixth respondent) Wei Li Yu (seventh respondent) Xin Wang (eight respondent) Ping Kwan Lo (ninth respondent) Leng Lin Leong (tenth respondent)
Representation:	Counsel: Applicant in person J Li (solicitor) (respondents) Solicitors: Applicant in person J Li (respondents)
File Number(s):	2020/342366
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWSC 1596 Date of Decision: 05 November 2020 Before: Garling J File Number(s): 2015/123687