Chateau Constructions (Aust) Ltd v Zepinic [No 4] - [2009] NSWSC 1478

CITATION: Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 4] [2009] NSWSC 1478

HEARING DATE(S): 21 December 2009

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

EX TEMPORE JUDGMENT DATE: 21 December 2009

DECISION: See paragraph [33] of judgment.

CATCHWORDS: PROCEDURE - plaintiff seeks appointment of trustee for sale of defendants' property - non appearance of defendants - sufficient notice of proceedings given to defendants - proceedings adjourned to give defendants an opportunity to respond due to gravity of orders sought by plaintiff

CATEGORY: Principal judgment

CASES CITED: Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 3] [2009] NSWSC 1373

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: No Appearance

SOLICITORS: Plaintiff: Toomey Pegg Drevikovsky Lawyers
Defendants: No Appearance

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

MONDAY 21 DECEMBER 2009

4643/09 CHATEAU CONSTRUCTIONS (AUST) LTD v MILLA ZEPINIC & VITO ZEPNIC [NO. 4]

JUDGMENT [Ex tempore]

1 HIS HONOUR : These proceedings have come again before me today for hearing on the plaintiff's amended summons. Liberty to amend the summons and bring the matter back today was granted in my orders of 3 December 2009 ( Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 3] [2009] NSWSC 1373).

2 Evidence has been read today in support of the amended summons. I have invited the reading of this evidence so the Court can assess what should next be done in this matter.

3 Chateau moves on its amended summons dated 11 December 2009. In support of that summons Chateau reads affidavits of Andrew Loel of 14 and 21 December 2009, Peter Knox of 10 December 2009, Nicholas Craig Malanos of 11 December 2009 and Donna Ferris of 11 December 2009.

4 On 3 December I made orders for Chateau to serve on the Zepinics my judgment that day, the amended summons and supporting affidavits and Chateau’s submissions. Service was directed upon the email address which the defendants, Dr and Mrs Zepinic were using to correspond with the solicitors for Chateau.

5 The affidavit material shows that Chateau has complied with the orders of 3 December 2009 for serving the defendants with this material. Chateau has filed and read substantially all of the evidence that it needs for a hearing on the amended summons. Chateau is in an obvious state of readiness to proceed on the amended summons to gain the relief that it seeks.

6 Chateau, by its counsel, Mr Ilkovski, urges me to make orders in accordance with orders 3 to 9 of the amended summons and in particular orders for the consequential relief appointing a trustee for sale of the property in Turramurra Avenue the subject of the charge and ordering the sale of that property.
7 I have no doubt that Dr and Mrs Zepinic have received the material that I ordered be served upon them. So much is evident from the email…

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.

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Details

Case: [2009] NSWSC 1478
Decision Date: 21 December 2009

CaseChat Overview and Summary

The case before the court involved Chateau Constructions (Aust) Ltd as the plaintiff and Zepinic as the defendants. The dispute pertained to the plaintiff's application for the appointment of a trustee for the sale of the defendants' property. The plaintiff had sought this remedy due to alleged unpaid debts. The defendants did not appear in court, leading to the court's consideration of the adequacy of the notice provided to the defendants and the appropriateness of granting the plaintiff's application in their absence.

The central legal issue before the court was whether the plaintiff's application for the appointment of a trustee could proceed in the absence of the defendants, given that they had not appeared. The court had to determine if sufficient notice of the proceedings had been given to the defendants and whether the gravity of the orders sought by the plaintiff warranted adjourning the proceedings to allow the defendants an opportunity to respond.

The court found that the notice given to the defendants was sufficient and that the defendants' non-appearance was not due to any fault on the plaintiff's part. However, considering the significant consequences of appointing a trustee for the sale of the defendants' property, the court decided to adjourn the proceedings. This adjournment allowed the defendants an opportunity to respond to the plaintiff's application, thus ensuring that their rights were adequately protected. The court emphasised the importance of procedural fairness in such matters, particularly when substantial property interests are at stake.

The final orders of the court were to adjourn the proceedings to give the defendants an opportunity to respond and to direct the plaintiff to provide further details regarding the notice given to the defendants. This decision underscored the court's commitment to ensuring that all parties have a fair opportunity to present their case, even in complex commercial disputes.

Orders