Gorczynski v Holden - [2008] NSWSC 334

CITATION: Gorczynski v Holden [2008] NSWSC 334

HEARING DATE(S): 09/04/2008

JUDGMENT DATE :
17 April 2008

JUDGMENT OF: Hoeben J at 1

DECISION: The summons is dismissed. The plaintiff is to pay the defendants’ costs assessed at $9,325. In respect of the adjourned hearing date of 17 March 2008 each party is to pay his or its own costs.

CATCHWORDS: Appeal from Small Claims Division of Local Court - challenge to conditions imposed for the setting aside of default judgments and the order for costs - power of Local Court in its Small Claims Division to award costs - power of Local Court in its Small Claims Division to order payment into court as a condition of setting aside a default judgment.

LEGISLATION CITED: Civil Procedure Act 2005
Legal Profession Act 1987
Legal Profession Act 2004
Legal Profession Regulations 2002
Local Courts Act 1982
Uniform Civil Procedure Rules 2005

CASES CITED: Grassby v R (1999) 168 CLR 1 at 636-7

PARTIES: Peter Francis Gorczynski - Plaintiff
Michael Geoffrey Anthony Holden, Stephen Edward Martin, Ian John Benecke and Brenden John Miller trading as Garland Hawthorn Brahe - Defendants

FILE NUMBER(S): SC 11838/2007

COUNSEL: Ms N Obrart - Plaintiff
Mr R Harper SC - Defendants

SOLICITORS: Kent Attorneys - Plaintiff
Garland Hawthorn Brahe - Defendants

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 6511/2005

LOWER COURT JUDICIAL OFFICER : Lulham LCM

LOWER COURT DATE OF DECISION: 15 March 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Thursday, 17 April 2008

11838/2007 – Peter Francis GORCZYNSKI v Michael Geoffrey HOLDEN T/as GARLAND HAWTHORN BRAHE & Ors
JUDGMENT

1 HIS HONOUR:

Nature of Proceedings

Local Courts Act

2 In the Local Court his Honour had before him applications by the plaintiff to set aside two default judgments. His Honour ordered that the default judgments be set aside but did so on condition that certain moneys be paid into court by the plaintiff and ordered the plaintiff to pay costs. The plaintiff in these proceedings seeks to set aside those conditions and the orders for costs. The plaintiff says that in the Local Court proceedings he was denied natural justice and that his Honour lacked power to impose the conditions and make the orders which he did. The amount involved is $10,786.07.

Factual background

3 The defendants are a firm of solicitors trading as Garland Hawthorn Brahe. They acted on behalf of the plaintiff in litigation during 2002 and 2003. The defendants rendered various bills of costs to the plaintiff. The defendants say that parts of those bills of costs were not paid by him. As a result, the defendants…

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 Gorczynski v Holden

Details

AGLC: Gorczynski v Holden [2008] NSWSC 334
Case: [2008] NSWSC 334
Decision Date: 17 April 2008

CaseChat Overview and Summary

In the case of Gorczynski v Holden, the respondent sought to have a default judgment set aside and challenged the conditions imposed by the Local Court, specifically the requirement to pay costs and the order for payment into court as a precondition. The matter was heard in the Small Claims Division of the Local Court, and the respondent appealed the decision to a higher court.

The legal issues before the court were whether the Local Court in its Small Claims Division had the authority to impose conditions such as the requirement to pay costs and to deposit a sum into court as a prerequisite for setting aside a default judgment, and if the court had the power to award costs. The respondent argued that the Local Court did not have the power to impose such conditions, and that the court's costs order was excessive.

The court examined the relevant legislation and case law to determine the powers of the Local Court in its Small Claims Division. It found that the court did have the power to impose conditions for setting aside a default judgment, including the requirement for payment into court. The court also held that it had the authority to award costs, and that the amount ordered was reasonable. The appeal was dismissed, and the respondent was required to pay the costs of the appeal.

Orders