Von Reisner v Chepurin - [2010] NSWCA 29

New South Wales

Court of Appeal

CITATION: Von Reisner v Chepurin [2010] NSWCA 29

HEARING DATE(S): 26 February 2010

JUDGMENT DATE:
26 February 2010

JUDGMENT OF: Allsop P at 1; Tobias JA at 30

EX TEMPORE JUDGMENT DATE: 26 February 2010

DECISION: 1. Extend time to the applicant in which to file and serve summons for leave to appeal up to and including the date that the summons for leave to appeal was filed in this matter;
2. Refuse leave to appeal against the decisions of the Judicial Registrar of the District Court and Judge Cogswell of the District Court as claimed in that summons;
3. Order that the applicant pay the costs of the respondent's of the application.

CATCHWORDS: APPEAL - leave to appeal - no question of principle

LEGISLATION CITED: Civil Procedure Act 2005
District Court Act 1973
Fair Trading Act 1987 S 68(2)
Div 6 Pt 2 Limitation Act 1969, ss 50C and 50D
Supreme Court Act 1970, s 75A
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: Bi v Mourad [2010] NSWCA 17
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Hans Pet Constructions v Cassar [2009] NSWCA 230
Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39

PARTIES: Koidu Von Reisner (Applicant)
Dr Sophia Wayne-Shevchuk (First Respondent)
Dr Oleg Chepurin (Second Respondent)

FILE NUMBER(S): CA 298365/2009

COUNSEL: In Person (Applicant)
A J Bowen (Respondents)

SOLICITORS: In Person (Applicant)
Guild Legal Limited (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1731/2004

LOWER COURT JUDICIAL OFFICER: Cogswell DCJ, Judicial Registrar McDonald

LOWER COURT DATE OF DECISION: 3 November 2008, 15 December 2008, 20 March 2009

298365/2009

ALLSOP P
TOBIAS JA
Friday 26 February 2010

KOIDU VON REISNER v DR OLEG CHEPURIN

Judgment on Summons

1 ALLSOP P: The applicant seeks leave to appeal from three decisions made in the District Court. The first was the refusal on 3 November 2008 of the Judicial Registrar to permit an amendment to the existing statement of claim. I will come back to another aspect of the orders made on that day in due course, but for present purposes I restrict the order from which leave is sought to the refusal to allow an amendment. The second is a refusal by the Judicial Registrar on 15 December 2008 to review or recall her own decision of November. The third is a decision of 20 March 2009 of Judge Cogswell of the District Court refusing to order a jury trial of the action.

2 Arguably the amendment that the Registrar identified, that is a claim under the Fair Trading Act 1987 for misleading and deceptive conduct, was then out of time. I will come to that point in due course.

3 Certainly the application for leave is out of time, but, perfectly properly, if I may respectfully say so, counsel, the solicitor and the respondents indicated that they did not want to put submissions on the question of time alone, rather they wished the leave…

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 [2010] NSWCA 29
Case: [2010] NSWCA 29
Decision Date: 26 February 2010

CaseChat Overview and Summary

The applicant, Von Reisner, sought leave to appeal against decisions made by the Judicial Registrar of the District Court and Judge Cogswell of the District Court. The respondent was Chepurin. The appeal concerned a dispute that had proceeded through the District Court.

The primary legal issue before the Court of Appeal was whether to grant leave to appeal against the District Court decisions. This involved considering whether there was a question of principle involved in the proposed appeal.

The Court of Appeal determined that there was no question of principle arising from the decisions of the Judicial Registrar or Judge Cogswell. Consequently, leave to appeal was refused. The Court also extended the time for the applicant to file and serve the summons for leave to appeal, to align with the date it was actually filed. The applicant was ordered to pay the respondent's costs of the application.

Orders

Orders of the court

1. Extend time to the applicant in which to file and serve summons for leave to appeal up to and including the date that the summons for leave to appeal was filed in this matter;

2. Refuse leave to appeal against the decisions of the Judicial Registrar of the District Court and Judge Cogswell of the District Court as claimed in that summons;

3. Order that the applicant pay the costs of the respondent's of the application.

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.

CITATION:	Von Reisner v Chepurin [2010] NSWCA 29
HEARING DATE(S):	26 February 2010
JUDGMENT DATE:	26 February 2010
JUDGMENT OF:	Allsop P at 1; Tobias JA at 30
EX TEMPORE JUDGMENT DATE:	26 February 2010
DECISION:	1. Extend time to the applicant in which to file and serve summons for leave to appeal up to and including the date that the summons for leave to appeal was filed in this matter; 2. Refuse leave to appeal against the decisions of the Judicial Registrar of the District Court and Judge Cogswell of the District Court as claimed in that summons; 3. Order that the applicant pay the costs of the respondent's of the application.
CATCHWORDS:	APPEAL - leave to appeal - no question of principle
LEGISLATION CITED:	Civil Procedure Act 2005 District Court Act 1973 Fair Trading Act 1987 S 68(2) Div 6 Pt 2 Limitation Act 1969, ss 50C and 50D Supreme Court Act 1970, s 75A Trade Practices Act 1974 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Bi v Mourad [2010] NSWCA 17 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Hans Pet Constructions v Cassar [2009] NSWCA 230 Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39
PARTIES:	Koidu Von Reisner (Applicant) Dr Sophia Wayne-Shevchuk (First Respondent) Dr Oleg Chepurin (Second Respondent)
FILE NUMBER(S):	CA 298365/2009
COUNSEL:	In Person (Applicant) A J Bowen (Respondents)
SOLICITORS:	In Person (Applicant) Guild Legal Limited (Respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	1731/2004
LOWER COURT JUDICIAL OFFICER:	Cogswell DCJ, Judicial Registrar McDonald
LOWER COURT DATE OF DECISION:	3 November 2008, 15 December 2008, 20 March 2009