Voicu v The Owners Strata Plan 1624 - [2019] NSWCA 254

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Voicu v The Owners Strata Plan 1624 [2019] NSWCA 254
Hearing dates: 14 October 2019
Date of orders: 14 October 2019
Decision date: 14 October 2019
Before: White JA
Decision:
Order that the applicant's notice of motion filed on 16 September 2019 be dismissed with costs.

Catchwords: CIVIL PROCEDURE – registrars – review of registrar’s decision – court of appeal – no issue of principle
Legislation Cited:
District Court Act 1973 (NSW), s 127
Legal Profession Act 2004 (NSW), ss 384, 385
Supreme Court Act 1970 (NSW), s 48
Uniform Civil Procedure Rules 2005 (NSW), rr 49.19, 51.59. 59.3
Cases Cited: In re Will of Gilbert (dec’d) (1946) 46 SR (NSW) 318
Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Wende v Horwarth (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Category: Procedural and other rulings
Parties: Ilie Gheorghe Voicu (Applicant)
The Owners Strata Plan 1624 (Respondent)
Representation:
Counsel:
Self-represented (Applicant)
A Power (Respondent)
Solicitors:
J S Mueller & Co (Respondent)

File Number(s): 2019/226773

Judgment

HIS HONOUR: This is an application for the review of orders made by the Registrar on 19 August 2019. I take it the application is made under rr 49.19 and 51.59 of the Uniform Civil Procedure Rules 2005 (NSW).
The orders made by the Registrar on 19 August 2019 were as follows:

“1.    Join the District Court as the second respondent.
2.    Direct the applicant to send, serve and or otherwise notify any    documents to the first respondent's legal representative, being (for the    time being) JS Mueller & Co.
3.    Applicant's submissions to be filed and served by 14 October 2019.
4.    Any further documents by the applicant to be filed and served by 14    October 2019.
5.    Decline to make the applicant's order as sought in the short minutes    handed up.
6.    Stood over for further directions on 21 October 2019 3pm; serve on    registrar notify parties.”

The orders sought by the applicant which the Registrar declined to make, were as follows:

“1. The Respondent is to file and serve the documents who was presumed to be send, but never was in fact, from COSTS ASSESSMENT REASON, NUMBER 2017/388313, point2.2 (a) (ii): ‘LETTER DATED 9 FEBRUARY 2018 WITH FUTHER [sic] SUPPORTING MATERIALS IN REPLY TO MY LETTER OF 16 FEBRUARY 2018’, solicited already on 7/09/2018 and on 25/10/2018, but don’t received yet.
2. The Respondent is to file and serve the documents mentioned on the Application for Costs Assessment, at page 19, point 124: ‘CostsPlus Pty Ltd fees for drawing draft application for assessment and bill of costs - $1471.20 plus GST - $1,618.32’.”

The proceedings in this Court were commenced by the applicant by a summons headed "Summons (Supervisory Jurisdiction)" adopting prescribed Form 107 for proceedings in the supervisory jurisdiction of the Court of Appeal. The respondent was named…

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 254
Decision Date: 14 October 2019

CaseChat Overview and Summary

The applicant, Mr. Voicu, sought to appeal a decision of the Registrar of the Supreme Court of New South Wales. The dispute concerned the Registrar's refusal to grant leave to appeal against an order made by a judge of the Supreme Court. The appeal was heard by White JA in the Court of Appeal of New South Wales.

The primary legal issue before White JA was whether the Registrar had erred in refusing leave to appeal. This required consideration of the criteria for granting leave to appeal from a Registrar's decision, particularly in circumstances where no arguable point of principle was raised.

White JA reasoned that the Registrar's decision was correct. The applicant had failed to demonstrate any error in the Registrar's assessment that there was no arguable point of principle justifying the grant of leave to appeal. The Court of Appeal's jurisdiction to review such decisions is limited, and the applicant did not meet the threshold for intervention.

Consequently, the applicant's notice of motion filed on 16 September 2019 was dismissed, and Mr. Voicu was ordered to pay the costs of the respondent, The Owners Strata Plan 1624.

Orders

Orders of the court

Order that the applicant's notice of motion filed on 16 September 2019 be dismissed with costs.

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:	Voicu v The Owners Strata Plan 1624 [2019] NSWCA 254
Hearing dates:	14 October 2019
Date of orders:	14 October 2019
Decision date:	14 October 2019
Before:	White JA
Decision:	Order that the applicant's notice of motion filed on 16 September 2019 be dismissed with costs.
Catchwords:	CIVIL PROCEDURE – registrars – review of registrar’s decision – court of appeal – no issue of principle
Legislation Cited:	District Court Act 1973 (NSW), s 127 Legal Profession Act 2004 (NSW), ss 384, 385 Supreme Court Act 1970 (NSW), s 48 Uniform Civil Procedure Rules 2005 (NSW), rr 49.19, 51.59. 59.3
Cases Cited:	In re Will of Gilbert (dec’d) (1946) 46 SR (NSW) 318 Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Wende v Horwarth (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Category:	Procedural and other rulings
Parties:	Ilie Gheorghe Voicu (Applicant) The Owners Strata Plan 1624 (Respondent)
Representation:	Counsel: Self-represented (Applicant) A Power (Respondent) Solicitors: J S Mueller & Co (Respondent)
File Number(s):	2019/226773