Chris (Krste) Saravinovski v George Saravinovski - [2014] NSWSC 1282

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Chris (Krste) Saravinovski v George Saravinovski [2014] NSWSC 1282
Hearing dates: 17 September 2014
Decision date: 17 September 2014
Jurisdiction: Equity Division
Before: Kunc J
Decision:
Notice of Motion dismissed

Catchwords: DISCOVERY AND INTERROGATORIES - Interrogatories - Whether "necessary" at the time order for interrogatories sought - No issue of principle - UCPR Pt 22, Rule 22.1(4)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Category: Procedural and other rulings
Parties: Chris (Krste) Saravinovski (Plaintiff/Cross-Defendant)
George Saravinovski (Defendant/Cross-Claimant)
Representation:
Counsel: E.A. Cheeseman SC and J.A. English (Plaintiff/Cross-Defendant)
N. Carney (Defendant/Cross-Claimant)
Solicitors: Rudra legal Corporation Pty Ltd (Plaintiff/Cross-Defendant)
Gells Lawyers (Defendant/Cross-Claimant)

File Number(s): 2012/39748
Publication restriction: No

EX TEMPORE Judgment

HIS HONOUR: The cross-claimant (to whom I shall refer without disrespect as George) brings his cross-claim against his father, the cross-defendant (to whom I shall refer without disrespect as Chris).

By a notice of motion filed in Court by leave today, and made returnable instanter, George applies pursuant to UCPR Part 22 Rule 22.1 for an order that Chris answer certain interrogatories in relation to George's cross-claim. Chris, for whom Ms Cheeseman of Senior Counsel appeared with Ms English of Counsel, opposed the application.

The proposed interrogatories are:

(1) What cash reserves did you hold legally or beneficially as at 15 September 2014 in any bank account or otherwise in Australia or elsewhere?

(2) What real property do you own legally or beneficially solely or with others?

(3) What shares do you own legally or beneficially solely or with others?

(4) What is the income earned or received by you in the year ending 30 June 2014?

(5) What money have you lent that has not been repaid as at 15 September 2014?

(6) Who occupies the real estate you currently own or control?

(7) What rent or licence fees do you receive from the occupants of any property you control?

The critical provision of the rules which I must bear in mind is UCPR Part 22 Rule 22.1(4) which provides that:

In any case, such an order [for interrogatories to be answered] is not to be made unless the court is satisfied that the order is necessary at the time it is made.

Furthermore, the Court's discretion must be exercised to give effect to the overriding purpose of the "just, cheap and quick resolution of the real issues in the proceedings" (Civil Procedure Act 2005 (NSW), s 56(2)).

The authorities suggest that the word "necessary" in Rule 22.1(4) is to be understood in the sense of being reasonably necessary for disposing fairly of the cause or matter or otherwise be in the interests of ensuring a fair trial.

What is necessary must be determined by reference to the pleadings. Putting the matter broadly, George's cross-claim alleges that his father represented to him (George) from an early stage of his life that if he paid the whole of his income to his father and otherwise acted in what is referred to…

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: [2014] NSWSC 1282
Decision Date: 17 September 2014

CaseChat Overview and Summary

The parties to the case were Chris (Krste) Saravinovski and George Saravinovski. The dispute centred on the issue of whether the interrogatories were necessary at the time the order for them was sought. The matter was heard in the Supreme Court of New South Wales. The applicant sought an order that the defendant's answers to interrogatories be taken as admitted. The defendant opposed the application on the grounds that the interrogatories were not necessary at the time the order for them was sought, as required by UCPR Pt 22, Rule 22.1(4).

The court had to decide whether the interrogatories were necessary at the time the order for them was sought. The court noted that there was no issue of principle in the case and that the matter was one of degree. The court held that the interrogatories were not necessary at the time the order for them was sought because the applicant had failed to establish that the interrogatories were necessary to dispose of the real issue in the proceeding. The court found that the applicant had not shown that the interrogatories were necessary to dispose of the real issue in the proceeding, which was whether the defendant had made any contributions to the property in question.

The court dismissed the application and made no order as to costs. The court held that the interrogatories were not necessary at the time the order for them was sought, and that the applicant had failed to establish that the interrogatories were necessary to dispose of the real issue in the proceeding. The court found that the applicant had not shown that the interrogatories were necessary to dispose of the real issue in the proceeding, which was whether the defendant had made any contributions to the property in question.

Orders