Liristis v Danic - [2011] NSWCA 239

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Liristis v Danic [2011] NSWCA 239
Hearing dates: 12 August 2011
Decision date: 12 August 2011
Before: Basten JA at 1 and 22;
Young JA at 20
Decision:
1. Application for leave refused.
2. Mr Tony Liristis to pay the respondent's costs of the proceedings in this Court as agreed or as assessed
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
COSTS - security for costs - leave to appeal - power of district court to stay proceedings brought by individual plaintiff pending provision of security - Civil Procedure Act 2005 (NSW) s 67 - judicial discretion - no error of principle identified

PROCEDURE - civil - leave to appeal - apprehended bias - previous professional relationship with judge - allegations to circumstances of termination - non-disclosure of details - absence of clear evidence - conduct of judge during hearing - tapes obtained but not tendered - whether arguable ground of appeal
PROCEDURE - civil - leave to appeal - waiver provided as condition of order for access to premises - lawfulness of condition
Legislation Cited: District Court Act 1973 (NSW), ss 127, 156
Civil Procedure Act 2005 (NSW), s 67
Cases Cited: Philips Electronics Australia Pty Ltd v Matthews (2002) NSWCA 157, 54 NSWLR 598
Category: Principal judgment
Parties:
Tony Liristis - First Applicant
Tasos Liristis - Second Applicant
Rita Liristis - Third Applicant
Gabriel Danic - First Respondent
Steven Danic - Second Respondent
Representation:
Counsel:

Mr Tony Liristis in person
Mr P O'Loughlin - Respondents
Solicitors:
First Applicant self-represented
Redmond Hale Simpson - Respondents

File Number(s): CA 2010/271881
Decision under appeal

Before:

Knox DCJ; Curtis DCJ

File Number(s):

DC 2009/5081; DC 2009/338107

Judgment

BASTEN JA : In this matter there is an application for leave to appeal against two judgments of the District Court at Sydney, one being of Knox DCJ of 21 April 2010 in, the other a judgment of Curtis DCJ of 19 July 2010. In fact Curtis DCJ handed down three judgments on that day. In one he varied an orders made by Knox DCJ that the applicant provide security for costs in the sum of $25,000.

The background of the proceedings has been set out in earlier judgments both in the District Court and in this Court and do I do not propose to describe them in detail. In short, on 5 December 2008 Palmer J in the Equity Division ordered that the respondents, or one of them, have immediate possession of a property of which a company controlled by the applicant was then in possession. The order was made in consequence…

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 Liristis v Danic

Details

AGLC: Liristis v Danic [2011] NSWCA 239
Case: [2011] NSWCA 239
Decision Date: 12 August 2011

CaseChat Overview and Summary

In *Liristis v Danic*, the applicant, Mr Tony Liristis, sought leave to appeal against orders made by the District Court of New South Wales. The dispute concerned an application by the respondent for security for costs, and the applicant's subsequent application to set aside a condition imposed by the District Court that he provide waiver as a condition of access to premises. The proceedings also involved allegations of apprehended bias against a judge.

The Court of Appeal was required to determine whether to grant leave to appeal on several grounds. These included whether the District Court erred in exercising its discretion under s 67 of the *Civil Procedure Act 2005* (NSW) to order security for costs, whether there was an arguable ground of appeal concerning apprehended bias arising from a previous professional relationship with the judge and the circumstances of its termination, and whether the condition requiring a waiver for access to premises was lawful.

Basten and Young JJA refused the application for leave to appeal. Their Honours found no error of principle in the District Court's exercise of its judicial discretion regarding security for costs. Regarding the apprehended bias claim, the Court found that the applicant had not provided clear evidence of the circumstances of the termination of the professional relationship and that the conduct of the judge during the hearing did not establish an arguable ground of appeal, particularly as tapes obtained were not tendered. The lawfulness of the waiver condition was also not considered an arguable ground for leave to appeal.

Consequently, the application for leave to appeal was refused, and Mr Liristis was ordered to pay the respondent's costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

1. Application for leave refused.

2. Mr Tony Liristis to pay the respondent's costs of the proceedings in this Court as agreed or as assessed

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Liristis v Danic [2011] NSWCA 239
Hearing dates:	12 August 2011
Decision date:	12 August 2011
Before:	Basten JA at 1 and 22; Young JA at 20
Decision:	1. Application for leave refused. 2. Mr Tony Liristis to pay the respondent's costs of the proceedings in this Court as agreed or as assessed [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - security for costs - leave to appeal - power of district court to stay proceedings brought by individual plaintiff pending provision of security - Civil Procedure Act 2005 (NSW) s 67 - judicial discretion - no error of principle identified PROCEDURE - civil - leave to appeal - apprehended bias - previous professional relationship with judge - allegations to circumstances of termination - non-disclosure of details - absence of clear evidence - conduct of judge during hearing - tapes obtained but not tendered - whether arguable ground of appeal PROCEDURE - civil - leave to appeal - waiver provided as condition of order for access to premises - lawfulness of condition
Legislation Cited:	District Court Act 1973 (NSW), ss 127, 156 Civil Procedure Act 2005 (NSW), s 67
Cases Cited:	Philips Electronics Australia Pty Ltd v Matthews (2002) NSWCA 157, 54 NSWLR 598
Category:	Principal judgment
Parties:	Tony Liristis - First Applicant Tasos Liristis - Second Applicant Rita Liristis - Third Applicant Gabriel Danic - First Respondent Steven Danic - Second Respondent
Representation:	Counsel: Mr Tony Liristis in person Mr P O'Loughlin - Respondents Solicitors: First Applicant self-represented Redmond Hale Simpson - Respondents
File Number(s):	CA 2010/271881
Decision under appeal	Before: Knox DCJ; Curtis DCJ File Number(s): DC 2009/5081; DC 2009/338107