Gorczynski v W and FT Osmo Pty Ltd - [2019] NSWCA 80

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gorczynski v W & FT Osmo Pty Ltd [2019] NSWCA 80
Hearing dates: 12 April 2019
Date of orders: 12 April 2019
Decision date: 18 April 2019
Before: Leeming JA and McCallum JA
Decision:
1. Summons seeking leave to appeal filed 29 October 2018 dismissed with costs.
2. Reasons reserved.

Catchwords: APPEALS – Appeal from interlocutory decision of associate Judge – Effect of commencing proceedings in Court of Appeal – Supreme Court Act 1970 (NSW), s 51(2) applied – Whether appellable error in refusal to order preliminary discovery – No error established – Leave refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3, 56
Supreme Court Act 1970 (NSW), ss 51, 101, 104, 118(4)
Supreme Court Rules 1970 (NSW), Pt 60 rr 10, 17
Uniform Civil Procedure Rules 2005 (NSW), rr 5.3, 49.4
Cases Cited: Gorczynski v W & FT Osmo Pty Ltd [2018] NSWSC 1107
Saunders v RHG Mortgage Corporation Ltd [2016] NSWCA 313
Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category: Principal judgment
Parties: Peter Francis Gorczynski (Applicant)
W & FT Osmo Pty Ltd (First Respondent)
Michelle Sarah Hale (Second Respondent)
Tammy Meyer (Third Respondent)
Robert Ebner (Fourth Respondent)
Vadim Topolinsky (Fifth Respondent)
Bradd Morelli (Sixth Respondent, submitting)
Representation:
Counsel:
M Luitingh (Applicant)
J O’Sullivan (Second, Third and Fourth Respondents)
C Lambert (Fifth Respondent)
Solicitors:
& Legal (Second, Third and Fourth Respondents)
Cohen & Krass (Fifth Respondent)

File Number(s): 2018/246718
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2018] NSWSC 1107

Date of Decision:

20 July 2018

Before:

Harrison AsJ

File Number(s):

2008/289619

Judgment

THE COURT: These are our reasons for dismissing the summons seeking leave to appeal on 12 April 2019, immediately following the conclusion of oral addresses.
By reserved judgment delivered on 20 July 2018, Harrison AsJ dismissed a notice of motion brought by Mr Peter Francis Gorczynski seeking orders in the nature of preliminary discovery: Gorczynski v W & FT Osmo Pty Ltd [2018] NSWSC 1107. Mr Gorczynski filed a notice of intention to appeal on 10 August 2018 and a summons seeking leave to appeal on 29 October 2018. On any view the summons is slightly more than a week late, and Mr Gorczynski has served evidence seeking to explain that delay.
The respondents against whom preliminary discovery is sought were associated in one way or another with the late William Osmo. The sixth respondent is the liquidator of Mr Osmo’s company, W & FT Osmo Ltd (in liq), and that company is named as the first respondent. The second and third respondents are executors of the estate of the late William Osmo, and the fourth respondent is a solicitor who acted for Mr Osmo. The fifth respondent is Mr Vadim Topolinsky, who was a former employee of Mr Osmo.

Jurisdictional…

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.

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Details

Case: [2019] NSWCA 80
Decision Date: 18 April 2019

CaseChat Overview and Summary

The applicant, Gorczynski, sought leave to appeal from an interlocutory decision of an Associate Judge of the Supreme Court of New South Wales. The respondents were W and FT Osmo Pty Ltd. The dispute concerned the applicant's request for preliminary discovery.

The primary legal issue before the Court of Appeal was whether the Associate Judge erred in refusing to order preliminary discovery. This required the court to consider the principles governing the grant of preliminary discovery and the threshold for establishing an appellable error in such a refusal.

The Court of Appeal found no error in the Associate Judge's decision. Applying the principles relevant to preliminary discovery, the court determined that the applicant had not demonstrated that the refusal to order discovery was wrong. Consequently, the court concluded that leave to appeal should be refused.

The summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

1. Summons seeking leave to appeal filed 29 October 2018 dismissed with costs.

2. Reasons reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gorczynski v W & FT Osmo Pty Ltd [2019] NSWCA 80
Hearing dates:	12 April 2019
Date of orders:	12 April 2019
Decision date:	18 April 2019
Before:	Leeming JA and McCallum JA
Decision:	1. Summons seeking leave to appeal filed 29 October 2018 dismissed with costs. 2. Reasons reserved.
Catchwords:	APPEALS – Appeal from interlocutory decision of associate Judge – Effect of commencing proceedings in Court of Appeal – Supreme Court Act 1970 (NSW), s 51(2) applied – Whether appellable error in refusal to order preliminary discovery – No error established – Leave refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 3, 56 Supreme Court Act 1970 (NSW), ss 51, 101, 104, 118(4) Supreme Court Rules 1970 (NSW), Pt 60 rr 10, 17 Uniform Civil Procedure Rules 2005 (NSW), rr 5.3, 49.4
Cases Cited:	Gorczynski v W & FT Osmo Pty Ltd [2018] NSWSC 1107 Saunders v RHG Mortgage Corporation Ltd [2016] NSWCA 313 Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category:	Principal judgment
Parties:	Peter Francis Gorczynski (Applicant) W & FT Osmo Pty Ltd (First Respondent) Michelle Sarah Hale (Second Respondent) Tammy Meyer (Third Respondent) Robert Ebner (Fourth Respondent) Vadim Topolinsky (Fifth Respondent) Bradd Morelli (Sixth Respondent, submitting)
Representation:	Counsel: M Luitingh (Applicant) J O’Sullivan (Second, Third and Fourth Respondents) C Lambert (Fifth Respondent) Solicitors: & Legal (Second, Third and Fourth Respondents) Cohen & Krass (Fifth Respondent)
File Number(s):	2018/246718
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2018] NSWSC 1107 Date of Decision: 20 July 2018 Before: Harrison AsJ File Number(s): 2008/289619