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Jacobsen v Spoljaric

Jacobsen v Spoljaric

Case [2025] NSWSC 842 22 July 2025

Civil Litigation & Procedure

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Jacobsen v Spoljaric [2025] NSWSC 842
Hearing dates: 22 July 2025
Date of orders: 22 July 2025
Decision date: 22 July 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
(1) Direct the parties to agree short minutes of order to give effect to these reasons and provide them to my chambers.

Catchwords:
CIVIL PROCEDURE – appearance – no appearance at hearing – where defendant afforded ample opportunity to attend and be heard – whether appropriate to proceed with hearing – no question of principle
LAND LAW – co-ownership – statutory trust for sale – application by trustees for disbursements from the proceeds for sale – occupation rent – plaintiff’s costs – trustees’ costs – whether costs to borne by the defendant

Legislation Cited:
Conveyancing Act 1919 (NSW), s 66G

Cases Cited:
Anson v Anson [2004] NSWSC 766
Callow v Rupchev [2009] NSWCA 148
Stibbard-Leaver v Leaver [2021] NSWSC 65
Take Off Opportunities Pty Ltd as trustee for The Clear Runway Trust v Susan Quinn Pty Ltd as trustee for The Susan Amelia Quinn Trust [2025] NSWSC 231

Texts Cited:
Nil

Category: Consequential orders
Parties: Sharon Nicola Jacobsen (Plaintiff)
Ivan Peter Spoljaric (Defendant)
Sichu Wang & Andrew James Barnden (Trustees / Applicants)
Representation:
Counsel:
S Foda (Plaintiff)
Solicitors:
Peacockes Solicitors (Plaintiff)
Downeys Lawyers (Trustees / Applicants)

File Number(s): 2023/00185441
Publication restriction: Nil

JUDGMENT (eX TEMPORE REVISED FROM TRANSCRIPT)

Before the Court for determination is what may loosely be described as the making of final orders giving effect to payment of out proceeds of the sale of a property consequent upon orders previously made by the Court pursuant to s 66G of the Conveyancing Act 1919 (NSW) (CA).
The property concerned is a property at Mount McDonald Road, Wyangala Dam in New South Wales (Property).
Represented before the Court this morning are the plaintiff and the trustees for sale. There is no appearance by the defendant this morning. Indeed, there has been no engagement at all by the defendant with these proceedings. I am satisfied on the evidence presented before me that the defendant has been well and truly on notice of the existence and progress of the proceedings, and, perhaps more importantly, of the fact that the matter is being determined essentially on a final basis, before me today. In the circumstances, notwithstanding the non-appearance of the defendant, I am satisfied that I should proceed with the hearing today.
The authorities in this regard - namely proceeding with a hearing in the absence of a party - were recently considered by Griffiths AJ in Take Off Opportunities Pty Ltd as trustee for The Clear Runway Trust v Susan Quinn Pty Ltd as trustee for The Susan Amelia Quinn Trust [2025] NSWSC 231 at [14]-[18]. These paragraphs are in the following terms:

[14] In these circumstances, r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that the Court may either proceed with the trial…

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.

Continue reading Jacobsen v Spoljaric

Details

AGLC: Jacobsen v Spoljaric [2025] NSWSC 842
Case: [2025] NSWSC 842
Decision Date: 22 July 2025

CaseChat Overview and Summary

In the Federal Circuit Court, Jacobsen, the plaintiff, sued Spoljaric, the defendant, concerning a dispute over co-ownership and the sale of a property. The plaintiff sought reimbursement for occupation rent, as well as costs associated with the proceedings, from the proceeds of the sale. The case involved an application by the trustees for disbursements from the sale proceeds for occupation rent and the plaintiff's costs, as well as the trustees' costs. The central legal issues were whether it was appropriate for the court to proceed with the hearing in the absence of the defendant, who had been given multiple opportunities to appear, and whether the costs incurred by the plaintiff and the trustees should be borne by the defendant.

The court found that the defendant had been afforded sufficient opportunity to participate in the proceedings but chose not to appear. The court determined that the defendant's absence did not prevent the hearing from proceeding, as there was no question of principle involved. Regarding the costs, the court held that the defendant should bear the costs of the plaintiff and the trustees. The court reasoned that the defendant's failure to engage in the proceedings justified the imposition of costs against them.

In summary, the court allowed the hearing to proceed in the absence of the defendant, who had been given ample opportunity to appear. The court held that the defendant was liable for the costs incurred by the plaintiff and the trustees. The defendant's failure to participate in the proceedings justified the imposition of these costs. The court did not find any principle-based reason to prevent the hearing from continuing in the defendant's absence.

Orders