Davidovic v Vesuvius Australia Pty Ltd (No 2) - [2016] NSWSC 1679

Supreme Court

New South Wales

Medium Neutral Citation: Davidovic v Vesuvius Australia Pty Ltd (No 2) [2016] NSWSC 1679
Hearing dates: 25 November 2016
Decision date: 25 November 2016
Jurisdiction: Equity
Before: Stevenson J
Decision:
Notice of motion filed on 25 October 2016 by Damjan Zugic dismissed with costs

Catchwords: PRACTICE AND PROCEDURE – proceedings stayed by earlier order pending payment to defendant of outstanding costs – application by alleged assignee of plaintiff’s cause of action to be substituted as plaintiff without first paying those costs – whether such application competent while stay subsists
Legislation Cited: Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 (NSW)
Cases Cited: Davidovic v Vesuvius Australia Pty Ltd [2014] NSWSC 1066
Minister of Foreign Affairs Trade and Industry v Vehicles and Supplies Ltd [1991] 1 WLR 550
Category: Procedural and other rulings
Parties: Velibor (Boris) Davidovic (Plaintiff)
Damjan Zugic (Interested Party/Applicant)
Vesuvius Australia Pty Ltd (First Defendant/Respondent)
Verekers Lawyers (Second Defendant)
Representation:
Counsel:
J R Young (Interested Party/Applicant)
P Russell (First Defendant/Respondent)
Solicitors:
James Legal (Interested Party/Applicant)
Pikes & Verekers Lawyers (First Defendant/Respondent)

File Number(s): SC 2013/385037

Judgment

The background to these proceedings is set out in the judgment of Darke J of 7 August 2014: Davidovic v Vesuvius Australia Pty Ltd [2014] NSWSC 1066.
These reasons assume familiarity with that judgment.
His Honour made the following orders (“the Orders”):

“(1) Subject to the condition that the plaintiff undertake to the Court to forthwith take appropriate steps to ensure that all who have an interest in what has been assigned under the Deed of Assignment are made party to the proceedings, grant leave to the plaintiff to file an amended Statement of Claim in the form of the amended Statement of Claim that is annexed to the affidavit sworn by the plaintiff on 28 May 2014, save for the deletion of the second defendant as a party (and any appropriate amendments consequential upon such deletion), and the deletion of paragraphs 55 and 56;
(2) The proceedings are stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) until the defendant, Vesuvius Australia Pty Ltd, is paid the sum of $95,728.75, being the costs the subject of the four certificates of determination sent on 4 April 2014 in the sums of $82,633.35, $11,401.40, $1,020.25 and $673.75; …”.

Thus, his Honour granted conditional leave to the plaintiff to amend the statement of claim and ordered that the proceedings be stayed until the $95,728.75 (“the Sum”) was paid.
The condition upon which leave was granted was not met. The Sum has not been paid. No application has been made to vary the Orders. The proceedings thus remain stayed.
The plaintiff is now bankrupt and has, evidently, left Australia permanently.
In December 2015, the defendant caused there to be served on the plaintiff’s trustee in bankruptcy a notice under s 60 of the Bankruptcy Act 1966 (Cth). There was no response to that notice and the official trustee is therefore deemed to have abandoned the proceedings.

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: [2016] NSWSC 1679
Decision Date: 25 November 2016

CaseChat Overview and Summary

The case of Davidovic v Vesuvius Australia Pty Ltd (No 2) involved the plaintiff, Davidovic, who sought to substitute an assignee as the plaintiff in a legal action against Vesuvius Australia Pty Ltd. The proceedings had been previously stayed by the court pending payment of outstanding costs to Vesuvius. The plaintiff's application to substitute the assignee as plaintiff without first paying the costs was considered by the court. The primary legal issue before the court was whether the application by the alleged assignee to substitute as plaintiff was competent while the stay on the proceedings remained in effect.

The court held that the application by the assignee to be substituted as plaintiff was not competent while the stay on the proceedings remained in place. The court reasoned that the stay, which was imposed due to the plaintiff's failure to pay outstanding costs, was a condition precedent to any further proceedings. The court found that the stay effectively prevented the assignee from being substituted as plaintiff without first addressing the outstanding costs owed to the defendant. Therefore, the application by the assignee to substitute as plaintiff without first paying the costs was deemed incompetent under the circumstances.

The court's decision was that the application by the assignee to be substituted as plaintiff was not permissible while the stay on the proceedings was in effect. The court ordered that the stay would remain in place until the outstanding costs were paid to Vesuvius Australia Pty Ltd. This decision underscored the importance of complying with court orders and the necessity for the plaintiff to resolve financial obligations before any further legal action could proceed. The court's ruling was thus a clear directive that the assignee could not advance the proceedings without first addressing the outstanding costs issue.

Orders