Prerera and Dee v Gorczynski [2002] NSWSC 639

Prerera and Dee v Gorczynski [2002] NSWSC 639

Master McLaughlin was entitled, and was correct, to conclude that the respondents were justified in commencing proceedings because the correspondence made clear that the padlock was preventing access to the right of carriageway and the appellant had not offered a key before action. Provision of the key on the first return date substantially achieved the relief sought. The alleged lack of local council approvals for uses of 80 Booth Street was irrelevant to the respondents' entitlement to access the right of carriageway and did not show misuse of court procedure. No discretionary error was established.

Jurisdiction
Australia
Judgment Date
25 July 2002
Procedural Posture
Appeal From a Master's Exercise of Discretion Concerning a Costs Order / Appeal to the Supreme Court From Master Mc Laughlin's Confirmation of Deputy Registrar Howe's Costs Order
Outcome
Appeal dismissed
Legal Topics
["appeal From Master's Discretion" 'costs on Discontinuance or Practical Resolution of Proceedings' 'right of Carriageway' 'relevance of Evidence' 'improper Use of Court Procedure']
['civil Procedure' 'costs' 'evidence' 'property Law'] ["appeal From Master's Discretion" 'costs on Discontinuance or Practical Resolution of Proceedings' 'right of Carriageway' 'relevance of Evidence' 'improper Use of Court Procedure']

Case Brief

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Procedural Posture

Appeal From a Master's Exercise of Discretion Concerning a Costs Order / Appeal to the Supreme Court From Master Mc Laughlin's Confirmation of Deputy Registrar Howe's Costs Order

Legal Issues

  1. 1 ["Whether the appellant showed error in Master McLaughlin's discretionary decision confirming the order that the appellant pay the respondents' costs of the summons up to and including 19 April 2000." 'Whether the respondents acted reasonably in commencing proceedings to obtain access to the right of carriageway and substantially achieved what they sought when keys were provided on the first return date.' "Whether evidence alleging use of the respondents' land without local council approval was relevant to the review of the costs order or showed an improper purpose."]

Ratio Decidendi

Master McLaughlin was entitled, and was correct, to conclude that the respondents were justified in commencing proceedings because the correspondence made clear that the padlock was preventing access to the right of carriageway and the appellant had not offered a key before action. Provision of the key on the first return date substantially achieved the relief sought. The alleged lack of local council approvals for uses of 80 Booth Street was irrelevant to the respondents' entitlement to access the right of carriageway and did not show misuse of court procedure. No discretionary error was established.

Court Disposition

Appeal dismissed

Orders

  • ['Notice of appeal dismissed.' 'The Court will hear the parties on costs.']