Prerera and Dee v Gorczynski - [2002] NSWSC 639

CITATION: Prerera and Dee v Gorczynski [2002] NSWSC 639

FILE NUMBER(S): SC 2134/00

HEARING DATE(S): 12/06/02

JUDGMENT DATE: 25 July 2002

PARTIES :

Peter Francis Gorczynski - Appellent
Ravini Neluka Perera - 1st Respondent
Rebecca Patricia Dee - 2nd Respondent

JUDGMENT OF: Gzell J

LOWER COURT
JURISDICTION : Supreme Court (Master)

LOWER COURT
FILE NUMBER(S) : 2134/00

LOWER COURT
JUDICIAL OFFICER : Master McLaughlin

COUNSEL : Cheney R J for the Appellant
Clay P R for the Respondents

SOLICITORS: Phillip Fox for the Appellant
Mallesons Solicitors for Respondents

CATCHWORDS: PROCEDURE - Courts and judges generally - appeal from Master's exercise of discretion - relevant principles - PROCEDURE - Costs - Order for costs to plaintiff on discontinuing proceedings - whether defendant acted unreasonably in resisting claim - EVIDENCE - Admissibility and relevancy - alleged user of land without local authority approval - whether relevant to Master's review of costs order by Deputy Registrar on discontinuance of proceedings to gain access to a right of carriageway - access sought regardless of user of land - no use of court procedure to achieve a breach of the law - Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 distinguishable.

LEGISLATION CITED: Supreme Court Act 1970
Supreme Court Rules 1970

CASES CITED: Donald Campbell & Co v Pollack [1927] AC 732 at 811-812
Chargecard Services Pty Ltd v Raad (Hamilton J, 2 September 1998, unreported
Do Cormo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409
Morrison v Judd (NSWCA) 10 October 1995, unreported
House v The King (1936) 55 CLR 499 at 505
Re the Minister for Immigration and Ethnic Affairs ex parte Lai Qin (1997) 186 CLR 622 at 624-625
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201
Wincopy Pty Ltd v Humphrey Juan Xu [2000] NSWSC 157 at par 20
Burdel Investments Pty Ltd v Burchett [2001] NSWSC 600
Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469
Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305

DECISION: Appeal dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 25 JULY 2002

2134/00 RAVINI NELUKA PERERA AND REBECCA PATRICIA DEE v PETER FRANCIS GORCZYNSKI

JUDGMENT

1 On 14 August 2001, Master McLaughlin confirmed an order of Deputy Registrar Howe of 27 November 2000 that the appellant pay the respondents’ costs of their summons up to and including 19 April 2000. The appellant appeals to the court from the order of the Master.

2 The respondents are the owners of land adjoining that of the appellant having the benefit of a right of carriageway over the appellant’s land. On 14 April 2000 the respondents filed their summons seeking an order that the appellant be restrained from preventing them and persons authorised by them from passing and repassing along the right of carriageway, an order directing the appellant to provide to the respondents a key to the roller door at the street end of the right of…

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 Prerera and Dee v Gorczynski

Details

AGLC: Prerera and Dee v Gorczynski [2002] NSWSC 639
Case: [2002] NSWSC 639
Decision Date: 25 July 2002

CaseChat Overview and Summary

Prerera and Dee brought a claim against Gorczynski concerning a dispute over a right of carriageway. The matter was initially heard by a Master, whose decision was then reviewed by a Deputy Registrar who ordered the plaintiffs to pay the defendant's costs upon discontinuing the proceedings. The plaintiffs sought leave to appeal against the Deputy Registrar's decision. The central legal issues were whether the Master had exercised their discretion appropriately, the principles guiding such discretion, and whether the defendant's conduct in resisting the claim was unreasonable, justifying an order for costs against the plaintiffs.

The court held that the Master's exercise of discretion was not flawed and adhered to relevant principles. It was determined that the Deputy Registrar correctly considered the plaintiffs' discontinuance of the proceedings and the absence of any misuse of court processes by the plaintiffs. The court found that the defendant's actions in resisting the claim were not unreasonable, and thus the order for costs was justified. The court also noted that the alleged use of the land without local authority approval was irrelevant to the Master's review of the costs order, as the right of carriageway was sought regardless of any land usage. The case of Mulcahy v Blue Mountains City Council was distinguished on the grounds that there was no breach of law through court procedure.

The court dismissed the appeal, affirming the Deputy Registrar's order for costs. The plaintiffs were required to pay the defendant's costs associated with the discontinuance of the proceedings. The court's decision emphasised the importance of discretion in reviewing costs orders and the necessity for parties to act reasonably in their litigation conduct.

Orders