Chateau Constructions (Aust) Ltd v Zepinic [No 2]

[2009] NSWSC 1338

CITATION:	Chateau Constructions (Aust) Ltd v Zepinic [No 2] [2009] NSWSC 1338 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 October 2009
JUDGMENT DATE :	8 October 2009
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
EX TEMPORE JUDGMENT DATE:	8 October 2009
DECISION:	Adjourned until completion of ongoing District Court proceedings
CATCHWORDS:	PROCEDURE - miscellaneous procedural matters - issue of declaration of a caveatable interest in the subject property and issue of costs unresolved - adjourned until completion of ongoing District Court proceedings
CATEGORY:	Consequential orders
PARTIES:	Plaintiff: Chateau Constructions (Aust) Limited First Defendant: Milla Zepinic Second Defendant: Vito Zepinic
FILE NUMBER(S):	SC 4643/09
COUNSEL:	Plaintiff: Mr B Ilkovski Defendants: Mr M Southwick
SOLICITORS:	Plaintiff: Toomey Pegg Drevikovsky Lawyers Defendants: Hancock Alldis & Roskov

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

THURSDAY 8 OCTOBER 2009

4643/09 CHATEAU CONSTRUCTIONS (AUST) LIMITED v MILLA ZEPINIC & VITO ZEPINIC [NO 2]

JUDGMENT (Re Applications for Adjournment and Costs)

1 HIS HONOUR: Mr Southwick appears this morning for the defendants and seeks an adjournment of the proceedings for a period of time. I am told, and this is not in contest, that an appeal against the CTTT order which is the foundation of the claim for a charge in this matter is pending before the District Court and is due to be determined in that Court on 5 November 2009. In those circumstances, Mr Southwick asks for an adjournment until the resolution of those District Court proceedings.

2 In response, Mr Ilkovski presses upon the Court that a declaration that the plaintiff has a caveatable interest in the subject property should be made today. I do not see any procedural point in making a declaration today. Even if it were made it would only have the effect of creating a declared right which could not be enforced before the District Court judgment on the CTTT appeal is given. Therefore, the making of a declaration now would seem to me to be the taking of a pointless procedural step.

3 The appropriate course is to grant an adjournment to a date early in December, which the parties will agree upon and inform the Court about shortly.

4 The plaintiff applies for costs of today. I have indicated to Mr Southwick on the evidence that I have seen so far I am minded to make an order for costs against the defendant in respect of the costs of today. Notice was given to the defendants before the last occasion of the orders that were going to be sought. There was no appearance then due to the defendants’ deliberate choice. All of what was dealt with today could have been dealt with on 28 September, rather than have an extra appearance today.

5 Mr Southwick says that he is not immediately in a position to get instructions about the detail of what occurred before 28 September in order to put him in a position to answer a costs application today. He asks for that to be argued on the next occasion. I will not proceed to determine the costs question if Mr Southwick has not had a chance to get instructions. The costs issue will also be deferred to the date in December as well. Because I have dealt with both of the hearing days (of 28 September and today), I will adjourn the matter before me so that I can determine the question of costs.

6 I am indicating that I have at least an inclination on the evidence that I have seen so far to make an order for costs in respect of today for the reasons stated. Further evidence and submissions from defendants, of course, may persuade me otherwise.

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08/12/2009 - [No 2] added to citation - Paragraph(s) Coversheet & Case Title