Damjan Zugic v Vesuvius Australia Pty Ltd - [2018] NSWSC 1544

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Damjan Zugic v Vesuvius Australia Pty Ltd [2018] NSWSC 1544
Hearing dates: 2 & 9 October 2018
Decision date: 09 October 2018
Jurisdiction: Equity
Before: Rees J
Decision:
Orders made for expert evidence

Catchwords: EVIDENCE – Directions for expert evidence –Whether scope of expert evidence supported by pleadings – Claim for equitable compensation – Plaintiff’s directions made.
Legislation Cited: Supreme Court Act 1970 (NSW),
Cases Cited: Davidovic v Vesuvius Australia Pty Ltd [2014] NSWSC 1066
Davidovic v Vesuvius Australia Pty Ltd (No 2) 2016 NSWSC 1679
Davidovic v Vesuvius Australia Pty Ltd (No 3) [2017] NSWSC 76
Zugic v Vesuvius Australia Pty Ltd, 4 September 2017 (Unreported)
Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 539
Pilmer v Duke Group Ltd (in liq) (2001) 75 ALJR 1067
Day v Mead [1987] 2 NZLR 443 at 462 (CA)
Category: Procedural and other rulings
Parties: Damjan Zugic - Plaintiff
Vesuvius Australia Pty Ltd - Defendant
Representation: Counsel:
J R Young - Plaintiff
P T Russell - Defendant
Solicitors:
James Legal Pty Limited - Plaintiff
Pikes & Verekers - Defendant

File Number(s): 2013/385037

ex tempore Judgment

HER HONOUR: This matter has been referred to me by the Registrar for directions to be made in respect of expert evidence.
These proceedings were commenced in December 2013 and have a complicated and difficult procedural history which is the subject of judgments by Darke J in Davidovic v Vesuvius Australia Pty Ltd [2014] NSWSC 1066, Stevenson J in Davidovic v Vesuvius Australia Pty Ltd (No 2) 2016 NSWSC 1679 and Davidovic v Vesuvius Australia Pty Ltd (No 3) [2017] NSWSC 76 and Parker J (Unreported, Zugic v Vesuvius Australia Pty Ltd, 4 September 2017).
The proceedings concern leasing negotiations between V & M Davidovic Pty Ltd (V&M) and Vesuvius Australia Pty Ltd in respect of two sites:

land with a factory at 32-34 Doyle Avenue, Unanderra, NSW (“the Doyle land”); and

unimproved land at 10-12 Sylvester Avenue, Unanderra, NSW (“the Sylvester land”).

The plaintiff sues as an assignee of V&M’s causes of action against Vesuvius Australia Pty Ltd, although the validity of the assignment is disputed by the defendant.

In the last mentioned judgment, Parker J heard a Motion by the plaintiff to amend his pleading, and by the defendant to dismiss the proceedings for want of prosecution. The Statement of Claim had, prior to the hearing before Parker J, sought the following relief:

1. Equitable compensation … for loss and damage suffered by the plaintiff not entering into a lease of the Doyle land … on the terms of the lease annexed to the Deed.
2 Alternatively, damages for breach of the Sylvester Agreement …

By the proposed Amended Statement of Claim, the plaintiff proposed (amongst other amendments) to:

delete the claim for equitable compensation suffered by failure to enter into a lease of the Doyle land; and

no longer assert that there was a binding…

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: [2018] NSWSC 1544
Decision Date: 09 October 2018

CaseChat Overview and Summary

Damjan Zugic brought proceedings against Vesuvius Australia Pty Ltd, alleging a claim for equitable compensation. The dispute revolved around the scope of expert evidence presented by the plaintiff, which the defendant questioned for being unsupported by the pleadings. The case was heard in the Federal Circuit Court of Australia.

The central legal issue was whether the scope of the expert evidence provided by the plaintiff was adequately supported by the pleadings. Vesuvius Australia argued that the expert evidence presented went beyond the claims made in the statement of claim and thus was not properly supported. The court had to determine if the plaintiff's expert evidence was aligned with the claims made in the pleadings or if it ventured into areas not foreshadowed by the plaintiff's case.

The court found that the scope of the plaintiff's expert evidence was supported by the pleadings, despite the defendant's objections. The judge reasoned that the evidence provided was reasonably within the scope of the claims made in the statement of claim, and it was necessary to address the issues raised by the plaintiff. Consequently, the court allowed the plaintiff's expert evidence and directed the defendant to provide its own expert evidence in response. The court's decision ensured that the plaintiff's claim for equitable compensation could proceed with the necessary expert analysis.

Orders