GORCZYNSKI v PERERA & ANOR [2003] NSWCA 211

New South Wales Court of Appeal

CITATION : GORCZYNSKI v PERERA & ANOR [2003] NSWCA 211 HEARING DATE(S) : 28 July 2003 JUDGMENT DATE : 28 July 2003

JUDGMENT OF : Sheller JA at 1; Santow JA at 32; Young CJ in Eq at 33 DECISION : Application for leave to appeal is dismissed with costs.

CATCHWORDS : Practice and Procedure - Leave to appeal - Relevant principles - Practice and Procedure - Costs - Costs assessment - Review LEGISLATION CITED : n/a CASES CITED : Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469 M & L Watson Pty Ltd t/as BBR Designs v Rilsung Pty Ltd [2003] NSWCA 36 Peter Francis Gorczynski - Claimant PARTIES : Ravini Nelvka Perera - First Opponent Rebecca Patricia Dee - Second Opponent FILE NUMBER(S) : CA 40733/02 COUNSEL : N Perram - Claimant P Clay - Opponents SOLICITORS : Thompson Eslick - Claimant Mallesons Stephen Jaques - Opponents

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT 2134/00 FILE NUMBER(S) : LOWER COURT Gzell J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40733/02 SC 2134/00

SHELLER JA SANTOW JA YOUNG CJ in EQ

Monday, 28 July 2003 GORCZYNSKI v PERERA & ANOR Judgment 1 SHELLER JA: This is an application to the Court for leave to appeal from a decision given by his Honour Gzell J on 25 July 2002. Gzell J dismissed the claimant's appeal from a decision of Master McLaughlin which was given on 14 August 2001. In that decision, the Master confirmed an order of Deputy Registrar Howe of 27 November 2000 requiring the claimant to pay the opponent's costs of a summons brought by the opponents against the claimant in the Equity Division. The summons was resolved except as to costs between the parties in terms of a handwritten minute signed by the claimant and counsel for the opponents on 19 April 2000 and filed in Court. I will come back to the contents of that minute shortly. 2 The opponent had filed its summons in the Equity Division on 14 April 2000. The first return date was before Windeyer J on 19 April 2000. The orders sought in the summons were, first, an order which in short form was to restrain the claimant from preventing the opponents and persons authorised by them from using a right of carriageway burdening a property known as 78 Booth Street Annandale, of which the claimant was the registered proprietor. In addition, the second order was sought directing the claimant to provide to the opponents forthwith a key to the roller door at the northern end of the right of carriageway; thirdly, an order was sought directing the opponent to remove the lattice screen erected on the right of carriageway. 3 The opponents were the registered proprietors as tenants in common of the adjoining property, 80 Booth Street, Annandale, which was the dominant tenement. Access to the right of carriageway from Booth Street was gained through a roller door, which had a central lock. The summons was filed following various interchanges by letter and conversations which were evidenced in affidavits filed in the proceedings in relation to the question of costs. 4 The following summarises what appear to be the important facts. The opponents had purchased 80 Booth Street late in 1999. On 23 November 1999 the claimant provided the opponents with a key to the roller door and a key to a padlock which was installed on the inside of the roller door in such a way as to lock it. On the same day, the padlock and the key were returned to the claimant. The circumstances in which this was done do not matter. Further, there is an unresolved dispute about whether the padlock was thereafter used again on the roller door until some time in February 2000. On 28 February 2000 the opponents' solicitor, Brian Phillips, wrote to Messrs Hones, solicitors. Mr Phillips apparently believed, on the basis of some other proceedings, that Hones were acting as solicitors for the claimant. Mr Phillips wrote: "We have been instructed by our client, your client has taken it upon himself to place a lock onto the roller shutter door, thereby depriving our client access to the property via the right of carriageway. As you will note, DP231539 created the right of carriageway in favour of our client which benefits our client's property and burdens your client's property. Your client's actions are obstructing access to the carriageway. Should your client not remove the locks(sic) by 5.00 pm today we shall approach the Court seeking injunctive relief and, if such action is necessary, we shall also seek to recover all associated costs."