von Reisner v Chepurin - [2012] NSWCA 422

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: von Reisner v Chepurin [2012] NSWCA 422
Hearing dates: 7 December 2012
Decision date: 07 December 2012
Before: McColl JA at [1], [37], Hoeben JA at [35]
Decision:
1 Refuse the applicant's application for an adjournment.
2 Dismiss the applicant's notice of motion dated 23 May 2011, amended notice of motion dated 7 July 2011 and amended notice of motion dated 6 December 2012.
3 Order the applicant to pay the respondents' costs of those notices of motion and of today.
[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: PRACTICE AND PROCEDURE - motion for review - adjournment application - no question of principle.
Legislation Cited: Civil Procedure Act 2005
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Forster v Harvey [2006] NSWSC 1112
Category: Principal judgment
Parties: Ms Koidu von Reisner - applicant
Dr Oleg Chepurin - first respondent
Dr Sophia Wayne-Shevchuk - second respondent
Representation: No appearance for applicant
A J Bower - respondents
No appearance for applicant
Meridian Lawyers - respondents

File Number(s): 2010/112105
Publication restriction: No
Decision under appeal

Jurisdiction:

9003

Citation:

Koidu von Reisner v Dr Oleg Chepurin (unreported, Young JA, 9 May 2011)
von Reisner v Chepurin [2011] NSWCA 162
Von Reisner v Chepurin [2012] NSWCA 418

Date of Decision:

2011-05-09 00:00:00

Before:

Young JA, Ward JA

File Number(s):

2010/112105

Judgment

McCOLL JA: The Court has before it two notices of motion filed by Ms von Reisner in which she seeks review of two decisions made by Justice Young. In the first decision, delivered on 9 May 2011, his Honour rejected Ms von Reisner's application for an order pursuant to Part 7, Division 9 of the Uniform Civil Procedure Rules 2005 ("UCPR") that legal assistance be provided to her to help her with the preparation of white folders and formulating her grounds of appeal. His Honour did, however, give the applicant an extension of time to file a White Book seeking leave to appeal from a decision of Bergin CJ in Eq made on 15 November 2010. In that decision Bergin CJ in Eq had refused the applicant's application to transfer and consolidate proceedings in the District Court of New South Wales with proceedings in the Supreme Court of New South Wales.

The proceedings in the District Court were commenced by the applicant in 2002, originally only against the first respondent, Dr Oleg Chepurin. In 2004 she was granted leave to file a fresh statement of claim…

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 von Reisner v Chepurin

Details

AGLC: von Reisner v Chepurin [2012] NSWCA 422
Case: [2012] NSWCA 422
Decision Date: 07 December 2012

CaseChat Overview and Summary

In *von Reisner v Chepurin*, the applicant sought an adjournment of proceedings before McColl and Hoeben JJA of the Court of Appeal of New South Wales. The respondents opposed the adjournment.

The primary legal issue before the Court was whether the applicant had established sufficient grounds to warrant an adjournment of the hearing of their notices of motion. The Court was required to consider the applicant's reasons for seeking the adjournment in light of the applicable procedural rules and principles governing such applications.

The Court refused the application for an adjournment, implicitly finding that the applicant had not demonstrated a compelling reason to delay the proceedings. The Court then proceeded to dismiss the applicant's notices of motion, indicating that the substantive applications lacked merit or had not been properly pursued. Consequently, the applicant was ordered to pay the respondents' costs associated with the notices of motion and the hearing of the adjournment application.

Orders

Orders of the court

1 Refuse the applicant's application for an adjournment.

2 Dismiss the applicant's notice of motion dated 23 May 2011, amended notice of motion dated 7 July 2011 and amended notice of motion dated 6 December 2012.

3 Order the applicant to pay the respondents' costs of those notices of motion and of today.

[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

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:	von Reisner v Chepurin [2012] NSWCA 422
Hearing dates:	7 December 2012
Decision date:	07 December 2012
Before:	McColl JA at [1], [37], Hoeben JA at [35]
Decision:	1 Refuse the applicant's application for an adjournment. 2 Dismiss the applicant's notice of motion dated 23 May 2011, amended notice of motion dated 7 July 2011 and amended notice of motion dated 6 December 2012. 3 Order the applicant to pay the respondents' costs of those notices of motion and of today. [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:	PRACTICE AND PROCEDURE - motion for review - adjournment application - no question of principle.
Legislation Cited:	Civil Procedure Act 2005 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Forster v Harvey [2006] NSWSC 1112
Category:	Principal judgment
Parties:	Ms Koidu von Reisner - applicant Dr Oleg Chepurin - first respondent Dr Sophia Wayne-Shevchuk - second respondent
Representation:	No appearance for applicant A J Bower - respondents No appearance for applicant Meridian Lawyers - respondents
File Number(s):	2010/112105
Publication restriction:	No
Decision under appeal	Jurisdiction: 9003 Citation: Koidu von Reisner v Dr Oleg Chepurin (unreported, Young JA, 9 May 2011) von Reisner v Chepurin [2011] NSWCA 162 Von Reisner v Chepurin [2012] NSWCA 418 Date of Decision: 2011-05-09 00:00:00 Before: Young JA, Ward JA File Number(s): 2010/112105