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." Hones, who had been acting for the claimant in other proceedings between the parties, apparently did not act for him otherwise. 5 On 1 March 2000 the claimant replied by letter, addressed to Mr Phillips. This letter could be regarded as not addressing the complaint about the padlock depriving the opponents of access. The claimant wrote, referring to the letter of 28 February addressed to Hones, confirming that Hones were not instructed to deal with any matters other than the other proceedings and continued: "As to your clients' allegations regarding my roller door, I enclose for your references a copy of my letters dated 26 November 1999 and 17 December 1999 addressed to Messrs Boulton Julian Squire, Solicitors. These are the most recent of several letters. Furthermore, I refer to my telephone calls on 28 January 2000 to your clients Rebecca Dee and Ravini Perera, wherein I sought a meeting in the hope of resolving all outstanding issues. Your clients stated that they were not interested in meeting with me. The contents of my enclosed letters are self-explanatory. To-date I have not received a reply to those letters. I reiterate that I have a right to secure my property and have an obligation to my insurer. I again request the current residential addresses of each of the owners of 80 Booth Street Annandale so that we can put an end to your clients' complaint." 6 On 1 March Mr Phillips wrote to the claimant: "We refer to your conversation with the writer on 28 February, 2000 and have noted your comments concerning, what you believe supports your position in locking the roller-shutter door, thereby preventing access to the right of carriageway. We have perused the Certificate of Title and do not see anywhere in the relevant documents anything to support your claim. We reiterate our position. You are not entitled to lock the roller-shutter door and deprive access to the right of carriageway. The terms of the right of carriageway are clearly set out in Deposited Plan 231539 and Schedule 8 of the Conveyancing Act 1919 as amended. Nowhere is there any provisions [sic] for the action you have taken. Should you not remove the lock from the roller-shutter door and, in doing so, allow access to the right of carriageway by 5.00 pm today, 1 March 2000, we shall without further notice, proceed to obtain injunctive relief. Should it be necessary to commence proceedings, we shall seek to recover all associated costs." 7 There is evidence which is uncontradicted of the claimant and Lynette Ann Murphy, whom the claimant describes as his associate, that on 2 March 2000 the claimant drove Ms Murphy to 5 Milton Street, Leichhardt, an address supposed by them to be that of the opponent, Rebecca Dee. While the claimant remained in the vehicle, Ms Murphy spoke to Rebecca Dee's father. Ms Murphy said: "Is Rebecca Dee here? I have keys to give her to the driveway at 78 Booth Street Annandale". The opponent's father, Michael Dee, replied: "She does not live here, she lives somewhere else in Norton Street, however she is away overseas at the moment and is coming back tomorrow. I suggest that you ring her tomorrow". 8 According to the claimant, on 6 March he rang Rebecca Dee on her mobile phone and left a voice mail message with words to this effect, and these are the words of the claimant: "Hi, this is Peter Gorczynski. I am trying to contact you. Please call me on 9262 6282 or 92962 6286. It is 12pm Monday 6 March". 9 On 8 March 2000 Mr Phillips wrote to Hones to the following effect, under the heading Leichhardt Council & Others v Gorczynski, Land & Environment Court Matter No 4012/2000: "Further to previous correspondence we have been instructed by Rebecca Dee, the Third Defendant, to accept service of the Class 4 Application. We have been instructed your client has left a voice-mail message for our client. Kindly request your client not to communicate with our clients directly." 10 This accorded with Ms Dee's instructions to Mr Phillips following receipt of the telephone message. Thereafter the claimant made, so far as the evidence goes, no further attempt to hand over the keys of the padlock on the roller door to the opponents. 11 On 14 April 2000 the proceedings began. No order was sought for the removal of the padlock as appears from the orders that I have already set out. The opponent's affidavit in support made no mention of any approach to Ms Dee's father or to the telephone message. 12 On 17 April 2000, after the proceedings had begun, the claimant wrote to Mr Phillips a three page letter, paragraph 12 of which was as follows: "You are aware that, after I received your 28 February letter on behalf of Ms Dee, I attempted to deliver keys to her at 5 Milton Street Leichhardt and when that failed I tried to contact her. I refer here to your letter to Hones Lawyers dated 8 March 2000." This was the letter I have already quoted. 13 The minutes that were filed in Court were headed with the words "Without Admission" and then proceeded "Noted: 1. That the Defendant has today provided to the Plaintiffs all keys claimed by the Defendants to be necessary to obtain access to the subject right of carriageway including the key to the roller door and the key to the padlock affixed to the roller door and to the padlock if any affixed to the metal framed gate (referred to as the lattice gate). The Defendant says that he previously supplied to the Plaintiffs such keys and he denies obstructing access. 2. The Defendant undertakes strictly and without derogation to comply with the terms of the right of carriageway created by DP 231539 burdening the Defendant's land at 78 Booth Street Annandale. 3. Order That the matter be stood over to the Registrar's list for mention on 4 May, 2000 at 9.30 am." There was then liberty to restore the matter. 14 It was pursuant to that reference to the Registrar's list that the matter proceeded on a question of who should pay the costs of the proceedings up to and including the filing of this minute. 15 The Deputy Registrar's decision on 27 November 2000 after referring to the material put before him and a chronology of what had occurred after the minutes of order were filed said: "From the above, it can be seen that some costs orders have already been made and I will not interfere with those. Given that the plaintiffs acted reasonably in filing the summons and were successful in that it spurred the defendant into action by handing over the keys on the first occasion the matter was before the Court, then they should have their costs of that summons." 16 The Deputy Registrar then considered whether any costs beyond 19 April should be awarded and decided not and accordingly ordered the defendant to pay the costs of the summons up to and including 19 April 2000. 17 Master McLaughlin delivered his decision on 14 August 2001. In the course of his reasons, the Master said: "16 The Court must look to the substance of the situation, being the fact that the summons sought firstly general relief of an injunctive nature to restrain the defendant from preventing the plaintiffs from exercising their rights of carriageway in accordance with the provision of the Conveyancing Act which I have already quoted, and then a specific order that the defendant provide the plaintiffs forthwith with a key to the roller door. I would here observe that the key that seems to be the subject of prayer 2 in the summons is a key to the padlock. 17 The fact that the letters expressly foreshadowed an application that the defendant remove the lock does not seem to me to be inconsistent with the more general order that was sought in prayer 1 of the summons, that the defendant be restrained from preventing the plaintiffs from exercising their right of carriageway. It seems to me that the relief sought in the summons was in no way inconsistent with the relief which had been foreshadowed in the correspondence. 18 Further, the outcome of the substantive part of the proceedings in consequence of the consent arrangements of the parties before Windeyer J on 19 April 2000 was that the plaintiffs were no longer being deprived of their rights. 19 It seems to me that the plaintiffs before his Honour on 19 April achieved substantially what they sought. That was that they were no longer going to be deprived of the right of free exercise of the right of carriageway. Further, that it was necessary for the plaintiffs to go to Court to enforce that right. 20 In those circumstances I consider that the plaintiffs were justified in instituting the proceedings. I consider that the Registrar was correct in awarding to the plaintiffs their costs up to and including 19 April 2000, and in consequence, upon my review of the Registrar's decision, I propose to confirm the order of the Registrar." 18 Gzell J in the reasons he gave on 25 July 2002, after summarising what his Honour regarded as the relevant authorities and facts and referring to what occurred on 23 November 1999, said: "10 Whatever the outcome of that issue might have been, it became obvious to the appellant on 28 February 2000 that the respondents were complaining that they could no longer gain access to the right of carriageway because the padlock had been replaced on the inside of the roller door. On that day the solicitors for the respondent sent a facsimile to solicitors acting for the appellant in other proceedings informing them that their instructions were that the appellant had placed a lock on the roller door thereby depriving the respondents of access to their property via the right of carriageway. The facsimile stated that if the locks (sic) were not removed by 5.00 pm that day they would approach the court seeking injunctive relief. 11 In response to the facsimile, the appellant telephoned the respondents' solicitors on that day. The appellant said that he informed the solicitors that the respondents had been provided with a set of keys and were not inconvenienced. The appellant raised a number of issues of concern to him. The respondents' solicitors said that the appellant said he needed to notify his insurers of the names of the new owners and those of other persons having a right to occupy the premises and that he would not hand over the keys to the roller door until he had had that information. Again, regardless of the way in which that issue might have been resolved at trial, it is clear that there was no offer by the appellant to provide a key for the padlock. 12 On 1 March 2000 the solicitors for the respondents sent a facsimile to the appellant referring to the conversation of 28 February 2000 and noting the concerns which he believed supported his position of locking the roller door thereby preventing access to the right of carriageway. The solicitors said that they had perused the terms of the right of carriageway and there was no provision entitling the appellant to take that action. The letter concluded that should the appellant not remove the lock from the roller door and allow access to the right of carriageway by 5.00 pm that day they would proceed to obtain injunctive relief. 13 On 1 March 2000, the appellant also responded to the conversation of 28 February 2000 by facsimile to the solicitors for the respondents, enclosed a letter of complaint of 26 November 1999 addressed to the former solicitors for the respondents which raised issues of concern to him, most of which had been raised by him in his conversation of 28 February 2000. They related to an easement to drain sewerage, encroachments, cracks in a garage wall, a dividing wall, a problem with stormwater and the question of contributions to the maintenance of the right of carriageway. In his facsimile, the appellant referred to his request to hold a conference with the respondents in an endeavour to resolve outstanding issues and the respondents' rejection of this proposal. He reiterated that he had a right to secure his property and again requested the residential addresses of the owners. 14 Regardless of how the issue with respect to the appellant's complaints might have been resolved at trial, if relevant to the central issue, what is abundantly clear, again, is a lack of offer on the part of the appellant to provide a key to the padlock." 19 His Honour referred to a decision of Kaye J in Garwolin Nominees Pty Limited v Statewide Building Society [1984] VR 469 and said "16 … Whether one regards this decision as an example of unreasonable conduct on the part of a defendant or an example of a plaintiff bound to succeed does not matter very much, in my view. They seem, with respect, to be different expressions of the same proposition. In the absence of a decision on the merits, a court will not conclude that a defendant acted unreasonably unless convinced that the plaintiff would have succeeded on the merits. Hence the base proposition that in absence of such satisfaction the appropriate order is that each party pay its own costs. 17 It was submitted before me that it was unreasonable for the respondents to commence the action because the relief obtained, another key to the padlock, had already been provided by the appellant, had not prior to the filing of the summons been sought from the appellant and would have been provided by the appellant had he simply been asked. It was submitted that the relief claimed in the summons had not been sought beforehand. What had been sought in the letter of 28 February 2000 was the removal of the locks. It was submitted that Master McLaughlin fell into error in concluding that the respondents were being deprived of their rights, that the respondents achieved substantially what they sought and that it was necessary to go to court to enforce their rights." 20 His Honour said that in his opinion Master McLaughlin was entitled to take the view that he did in the exercise of his discretion whether or not to confirm the order of Deputy Registrar Howe. Injunctive relief was clearly sought in the solicitors' letters of 28 February and 1 March 2000, injunctive relief was sought in paragraph 1 of the summons. It was apparent to the appellant from the solicitors' letters that the complaint was that the padlock on the inside of the roller door was preventing access to the right of carriageway, thereby depriving the respondents of their rights. 21 His Honour concluded that Master McLaughlin was entitled to conclude that the respondents had, by commencing the proceedings, achieved substantially what they sought. The material before the Master enabled him to conclude that it was the padlock on the roller door that was causing the problem and that the provision of a key to it on the first return date of the summons substantially achieved the respondents' purpose. 22 In the absence of an offer by the appellant to remedy the lack of access to the right of carriageway by reason of the padlock, the Master was entitled also to find that it was necessary for the respondents to commence the proceedings. His Honour observed that in his view not only was the Master entitled to conclude in the way he did but also he was correct in his conclusions. His Honour observed that, being put on notice, it was up to the claimant, to offer to provide a further key. In the absence of that offer, the respondents were entitled to commence proceedings and the provision of a key thereafter was a substantial achievement of what they sought in those proceedings. 23 As I have said, this is an application for leave to appeal from Gzell J's decision. It is said that it concerns a question of practice and procedure about costs. It is conceded on behalf of the claimant that it does not involve any question of general principle. 24 There is set out in a draft notice of appeal a ground of appeal in the following terms: "1. His Honour erred in failing to take into account the uncontradicted evidence that the Appellant [that is to say the claimant] had attempted to provide the Respondents [that is to say the opponents] with a set of keys on 2 March 2000." That occasion was of course some five or six weeks before the proceedings were begun. However, it was argued on behalf of the claimant that the omission of reference to this uncontradicted evidence was an error which fell within well-known principle to enable this Court to intervene with the decision and reconsider the order made. 25 I make the following points: first, on the evidence, the claimant made no offer to either opponent or their solicitors, despite the passing of some five weeks after the occasion of the visit to Miss Dee's father before the proceedings began. Nowhere was any offer made by the claimant to the opponents' solicitors to provide keys to the opponents. The claimant clearly knew that during that period the opponents could not, because of the presence of the padlock, use their right to full and free access to the carriageway. Further, the claimant knew that unless he put the position right by either removing the padlock or providing a key to the padlock, proceedings would be brought against him. It is not at all clear to me that the error that is now relied upon was the subject of any submissions made to the Deputy Registrar, the Master or to Gzell J. However, assuming that it was, it seems to me in the scheme of things of little if any significance. The fact of the matter is that the only offer to provide keys was made to Ms Dee's father, that he pointed out to the person who spoke to him that the opponent did not live in the premises which had been visited and that the only further attempt made was to leave the telephone message which made no mention of the keys at all and apparently was regarded by Ms Dee and the solicitors Hones as something that arose out of the Land and Environment Court proceedings. 26 If the argument was put and indeed if it was overlooked rather than not mentioned because it was regarded by the Judge and the Master of no consequence, in my opinion it makes no difference whatever to the correctness of the decision arrived at by Gzell J. 27 In my opinion, as it seems to be conceded, clearly the claimant was under a duty, if he wished there to be a locked padlock on the roller door, to provide a key to the opponents when he knew the opponents did not have one. 28 Further, as it seems to me the claimant accepted by signing the short minutes of order, what had occurred entitled the opponents to the more general undertaking they obtained of compliance with the terms of the right of carriageway. This had never previously been offered. 29 In the course of his submissions to us, Mr Perram referred to the decision of this Court in M & L Watson Pty Ltd t/as BBR Designs v Rilsung Pty Ltd [2003] NSWCA 36 in the course of which Santow J, in dealing with an application for leave to appeal against a costs order, said "8 … it is apparent that the amount involved though no doubt important to the parties, is well below the threshold for an appeal as of right were that monetary limit applicable. It is not because s101(2)(c) of the Supreme Court Act imposes the need for leave, being an appeal ' as to costs only which are in the discretion of the Court '. However, that monetary limit may be drawn on by analogy, to test the appropriateness of granting the leave sought. Nor does the case involve any significant point of principle." 30 Mr Perram referred to that matter, anticipating that that reasoning may be taken as defeating this application for leave to appeal at the threshold. He submitted to us that we should not follow the earlier decision of this Court. 31 In my opinion, quite separately from any question such as that raised by Santow J, this appeal would have no prospect of success whatever. I have taken some time in explaining the background and explaining in short terms why I think that is so. In my opinion, this is a case in which leave should be refused and should be refused with costs and I propose the Court so order. 32 SANTOW JA: I agree. 33 YOUNG CJ IN EQ: I also agree but I do not wish to be taken as thinking that there is anything awry with the decision in M & L Watson Pty Ltd t/as BBR Designs v Rilsung Pty Ltd. 34 SHELLER JA: Accordingly, the order of the Court is that the application for leave to appeal is dismissed with costs. ********** Last Modified: 08/05/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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