Kessly v Hasapaki

[2015] NSWCA 292

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kessly v Hasapaki [2015] NSWCA 292
Hearing dates:	1 June 2015
Date of orders:	24 September 2015
Decision date:	05 June 2015
Before:	Macfarlan JA
Decision:	(1) Grant the appellant leave to amend her Notice of Appeal by filing the proposed Amended Notice of Appeal appearing at Red Book p 44. (2) Order that orders (7) to (9) of the Land and Environment Court’s orders entered on 15 May 2015 be stayed pending determination of the present appeal. (3) Dismiss the respondent’s Notice of Motion filed on 19 May 2015 seeking security for her costs of the appeal. (4) Make no order as to the costs of the appellant’s and respondent’s motions with the intent that those costs form part of the general costs of the appeal.
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50
Cases Cited:	Gray t/as Clarence Valley Plumbing v Ware Building Pty Ltd [2012] NSWCA 438 Grustein v Hazapakai (No 2) [2014] NSWLEC 174 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Category:	Procedural and other rulings
Parties:	Evangelia Grustein (Kessly) (Appellant) Katina Hasapaki (Respondent)
Representation:	Counsel: B Green (Appellant) R Gration (Respondent)   Solicitors: Navado Lawyers & Solicitors (Appellant) GA Lawyers (Respondent)
File Number(s):	CA 2014/340645
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: New South Wales Citation: Grustein v Hasapaki (No 2) [2014] NSWLEC 174 Date of Decision: 29 October 2014 Before: Biscoe J File Number(s): LEC 2004/30665

Judgment

1. HIS HONOUR: There are two motions before the Court. One is the appellant’s motion seeking a stay of certain costs orders made by the Land and Environment Court and seeking leave to amend her Notice of Appeal. The other is the respondent’s motion seeking security for the respondent’s costs of the appeal and a stay of the appeal until that security is provided.

2. The appeal is from a judgment dated 29 October 2014 of Biscoe J of the Land and Environment Court (Grustein v Hasapaki (No 2) [2014] NSWLEC 174) in which his Honour found the appellant guilty of contempt of court by reason of her disobeying a consent order of that Court dated 17 December 2004 that required her to use her best endeavours to grant, and have registered, an easement over her property at Mascot.

3. Initially the appellant was unrepresented on her appeal. As a result, her Notice of Appeal is a handwritten document which is of limited assistance. She now has legal representatives and seeks leave to file an Amended Notice of Appeal. That Amended Notice of Appeal identifies the issues to be raised on the appeal more satisfactorily. It makes plain that central to the appeal is a complaint that the primary judge should not have refused the appellant’s application for an adjournment of the contempt hearing and should not therefore have proceeded with it in the appellant’s absence. As it is apparent that the appellant contends that she was denied procedural fairness, I reject the respondent’s submission that the proposed Amended Notice of Appeal does not adequately identify any question of law which would enliven this Court’s jurisdiction to entertain the appeal.

4. I also reject the respondent’s contention that the appeal as delineated in the proposed Amended Notice of Appeal is plainly futile. On the contrary, it appears to me that the appeal is arguable. I also reject the respondent’s submission that leave to appeal is required because the appeal is as to costs only. To the contrary, the appeal challenges the finding of contempt (order (1) below) which formed the basis for the various costs orders.

5. As a result, I consider that the appellant should be given leave to file her proposed Amended Notice of Appeal and that the costs orders, consequential upon the finding of contempt, should be stayed pending the hearing of the appeal.

6. I turn then to the respondent’s motion for an order for security for its costs. The respondent relies upon r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) as she accepts that none of the circumstances referred to in r 42.21 of the UCPR apply. Security for costs may only be ordered under r 51.50 in “special circumstances”. Examples of circumstances that might be regarded as “special” for this purpose were given in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18] (see also Gray t/as Clarence Valley Plumbing v Ware Building Pty Ltd [2012] NSWCA 438 at [8]). The respondent relied in the main on circumstances that led to the primary judge refusing to adjourn the hearing but I do not consider that these constitute “special circumstances” within the meaning of r 51.50. They are simply part of the factual circumstances leading up to the hearing at first instance that will need to be considered in resolving the appeal. As a result, I do not consider that there is any justification for making an order for security for the respondent’s costs.

7. For these reasons, I make the following orders:

1. Grant the appellant leave to amend her Notice of Appeal by filing the proposed Amended Notice of Appeal appearing at Red Book p 44.

2. Order that orders (7) to (9) of the Land and Environment Court’s orders entered on 15 May 2015 be stayed pending determination of the present appeal.

3. Dismiss the respondent’s Notice of Motion filed on 19 May 2015 seeking security for her costs of the appeal.

4. Make no order as to the costs of the appellant’s and respondent’s motions with the intent that those costs form part of the general costs of the appeal.

**********

Decision last updated: 24 September 2015