Chateau Constructions (Aust) Ltd v Zepinic [No 6] - [2010] NSWSC 538

CITATION: Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 6] [2010] NSWSC 538

HEARING DATE(S): 18 February 2010

JUDGMENT DATE :
21 May 2010

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: a. Dismiss the defendant's amended motion of 15 December 2009.
b. Order the defendants to pay the plaintiff's costs of the proceedings after 3 December 2009.
c. Grant liberty to apply.

CATCHWORDS: PROCEDURE - Supreme Court procedure - cross claims - cross claim filed out of time - leave sought to file cross claim after determination of principal claim - whether prosecution of cross claim is barred by Anshun estoppel - COSTS - plaintiff claims costs should follow the event - HELD - no estoppel - but extension of time to file cross claim not granted - pleading embarrassing and principal proceedings determined - costs ordered to follow the event

LEGISLATION CITED: Civil Procedure Act 2005, ss 22, 56
Uniform Civil Procedure Rules rr 9.1, 16.1, 42.1

CATEGORY: Consequential orders

CASES CITED: Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248
Chateau Constructions (Aust) Ltd v Zepinic [2009] NSWSC 1339
Chateau Constructions (Aust) Ltd v Zepinic [No 2] [2009]
Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 3]
Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 4]
Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 5]
Chatsworth investments Ltd v Amco (UK) Ltd (1968) 1 Ch 665
CSI International Co Ltd v Archway Personnel (Middle East) Ltd (1980) 1 WLR 1069
Henderson v Henderson (1843) 67 ER 313
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Wood v Cross TV Centre Pty Limited (1962) NSWR 528

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: Dr Zepinic (self represented)

SOLICITORS:
Plaintiff: Toomey Pegg Drevikovsky Lawyers
Defendants: Dr Zepinic (self represented)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

SLATTERY J

FRIDAY 21 MAY 2010

4643/09 CHATEAU CONSTRUCTIONS (AUST) LTD v MILLA ZEPINIC & VITO ZEPINIC [NO 6]

JUDGMENT

Chateau Constructions (Aust) Pty Limited (“Chateau”), a builder, is in dispute with Dr and Mrs Zepinic, the owners of residential property in Turramurra (“the Turramurra property”). The proceedings came before me on 28 September 2009, 8 October 2009, 3 December 2009, 21 December 2009 and 18 February 2010. I have already given the following five judgments in this matter:

Chateau Constructions (Aust) Ltd v Zepinic [2009] NSWSC 1339

Chateau Constructions (Aust) Ltd v Zepinic

[2009] NSWSC 1338

Chateau Constructions (Aust) Ltd v Zepinic & Anor

[2009] NSWSC 1373

Chateau Constructions (Aust) Ltd v Zepinic & Anor

[2009] NSWSC 1478

Chateau Constructions (Aust) Ltd v Zepinic & Anor

[2010] NSWSC 265

2 In my judgment of 8 April 2010, I left open final decision on the issue of…

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.

Keep reading for free

Create a free CaseChat account to read Chateau Constructions (Aust) Ltd v Zepinic [No 6] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 538
Decision Date: 21 May 2010

CaseChat Overview and Summary

The case of Chateau Constructions (Aust) Ltd v Zepinic [No 6] involved a dispute between Chateau Constructions, the plaintiff, and Zepinic, the defendant. The matter was before the court to determine issues related to procedural law, specifically concerning the timeliness of filing a cross claim and the applicability of Anshun estoppel. Additionally, the plaintiff sought an order for costs to follow the event.

The primary legal issues before the court were whether the defendant was estopped from prosecuting a cross claim filed outside the stipulated time and if an extension of time should be granted to file this cross claim. The court was also required to consider the plaintiff's application for costs to follow the event.

The court held that the defendant was not estopped from prosecuting the cross claim due to the absence of an Anshun estoppel. However, the court declined to grant an extension of time for filing the cross claim, noting that the pleading was embarrassing and had already led to the determination of the principal proceedings. Consequently, the court ordered costs to follow the event. This decision underscored the importance of adhering to procedural timelines and the potential consequences of filing cross claims outside the prescribed time frames.

Orders