Jadwiga Edwina Lisakowska by her attorney Dimce Jim Bogoevski v A.C.N. 150 898 927 Pty Ltd

[2019] NSWSC 1139

Supreme Court

New South Wales

Medium Neutral Citation:	Jadwiga Edwina Lisakowska by her attorney Dimce Jim Bogoevski v A.C.N. 150 898 927 Pty Ltd & Anor [2019] NSWSC 1139
Hearing dates:	2 September 2019
Date of orders:	02 September 2019
Decision date:	02 September 2019
Jurisdiction:	Equity - Duty List
Before:	Slattery J
Decision:	Application for discontinuance of the proceedings adjourned to 6 September 2019. Directions given to ensure that the plaintiff is able to communicate directly with the Court before final orders are made in the proceedings.
Catchwords:	PRACTICE AND PROCEDURE – notice of discontinuance – a legally unrepresented plaintiff appears to consent to defendants’ notice of discontinuance of the proceedings – proceedings were brought by summons in the plaintiff’s name by a person claiming to be her attorney – the proceedings seek the recovery of a deposit on terminated contracts – attorney commencing the proceedings is the plaintiff’s estranged husband – the proceedings were started after the husband’s separation from her – the plaintiff was apparently unaware of the existence of the proceedings – the defendants gave the plaintiff short notice of the first return date of the summons – the plaintiff apparently communicates with the defendants consenting to their notice of discontinuance – all the plaintiff’s communications with the Court are via persons with adverse interests to her – Court not confident that plaintiff has consented to the notice of discontinuance – what is the appropriate procedural course to ensure that the plaintiff has consented to the notice of discontinuance.
Legislation Cited:	Uniform Civil Procedure Rules 2005, rr 4.6, 7.3A, 12.1
Cases Cited:	Sheen v Burke [1993] 1 VR 584
Category:	Procedural and other rulings
Parties:	Plaintiff: Jadwiga Edwina Lisakowska by her attorney Dimce Jim Bogoevski First Defendant: A.C.N. 150 898 927 Pty Ltd Second Defendant: Leesa-Gay Irene Scuch
Representation:	Counsel: First and Second Defendants: J.D. Cook   Solicitors: Power of Attorney: Dimce Jim Bogoevski – in person First and Second Defendants: Robert Parsons, McDonald & Partners Solicitors
File Number(s):	2019/247495
Publication restriction:	No

EX TEMPORE Judgment

1. In these proceedings the plaintiff, Jagwiga Edwina Lisakowska by her attorney Dimce Jim Bogoevski, sues the defendants, ACN 150 898 927 Pty Limited and Leesa-Gay Irene Scuch, for the return of a deposit of $25,000 given under two contracts, which have been terminated.

2. The Registrar referred these proceedings from her list to the duty list this morning. The defendants seek orders from the Court that the plaintiff discontinue the proceedings, on terms that each party bear their own costs. The Court has power to make the orders if both parties consent or by leave: Uniform Civil Procedure Rules 2005, r 12.1 (“UCPR”).

3. The plaintiff is not present at Court. But Mr Bogoevski is before the Court. Mr J.D. Cook of counsel, instructed by McDonald Partners, appears for the defendants.

4. The facts of the case are unusual. The proceedings were commenced by summons on 28 May this year by Mr Bogoevski, as the authorised attorney of Ms Lisakowska. Mr Bogoevski has filed an affidavit of relevant events, which has been read. Mr Robert Parsons, the solicitor for the defendants, has also provided affidavit evidence about his communications with Ms Lisakowska. The Court can recount some further background, recording only such facts as are necessary which convey the essential issues.

5. Mr Bogoevski is married to Ms Lisakowska, but he and she separated approximately 12 months ago. Mr Bogoevski's evidence is that his wife gave him a power of attorney, which authorised him to commence these proceedings on 19 March 2018, but he separated from her about five or six months after that date. He commenced these proceedings, he acknowledges, without communicating with her. This lack of communication is partly apparently explained by the fact that there are apprehended violence orders out against him brought by his wife.

6. Whether he knew that his separation from his wife, and her taking out an AVO against him, should have caused him to question whether he had authority to commence these proceedings in May this year has not been explored. That issue has been overtaken by events. The plaintiff has apparently recently revoked the power of attorney to him.

7. The proceedings relate to the plaintiff's purchase of a land and business in New South Wales. The plaintiff was apparently the purchaser of the land for $1.125 million and the business for $75,000 from the vendors, the defendants.

8. Under the two parallel contracts for the sale of land and sale of the business, deposits totalling $60,000 were to be paid as follows: $56,250 deposit, being 5 percent of the total consideration for the sale of the land and $3,750, being a 5 percent deposit for the purchase of the business.

9. Part payment of the deposit of $25,000 was made to solicitors Messrs Hynes & McCormack, solicitors in Murwillumbah upon exchange of contracts on 22 December 2017.

10. Mr Bogoevski says, and he is the only present source of this information, that Ms Lisakowska entered into possession of the land and business about at the time the contracts were exchanged on 22 December 2017, and remained in possession until 10 May 2018. Various disputes seem to have arisen, he says, between Ms Lisakowska and the vendors which resulted in the vendors forcibly taking back possession on 10 May 2018.

11. The Court understands that the $25,000 deposit is still in the trust account of solicitors, Messers Hynes & McCormack, who seem, on the available evidence, to have acted as neutral stakeholders in relation to the two contracts. Mr Cook of counsel, for the defendants, does not have instructions to indicate to the Court what will happen to this fund, if these proceedings were to be discontinued.

12. When Ms Lisakowska separated from Mr Bogoevski, she appears to have moved away interstate with other family members and wishes not to have her whereabouts revealed to Mr Bogoevski. She has taken out an apprehended violence order against him. But this morning, the Court was told through the evidence of Mr Parsons, the defendants’ solicitor, that he had recently held direct communications with Ms Lisakowska. In those communications, Ms Lisakowska had said that she was unaware that Mr Bogoevski had commenced any proceedings on her behalf and was unaware that he was purporting to act as her attorney in this action.

13. Mr Parsons said, and the Court accepts, that he advised Ms Lisakowska that she should obtain her own legal advice, but Ms Lisakowska apparently told Mr Parsons that "she did not want Jim to be her attorney". Upon hearing that, Mr Parsons apparently invited Ms Lisakowska to provide him with a document confirming the revocation of any power of attorney to Mr Bogoevski. Ms Lisakowska then signed a document apparently revoking the power of attorney she had given to Mr Bogoevski. That document has been tendered before the Court and appears to be a form of revocation of the power of attorney.

14. At the same time, Ms Lisakowska also executed, so it appears, consent orders for the discontinuance of the proceedings. The defendants seek to advance these signed orders this morning to seek a discontinuance of the proceedings by consent.

15. There is only a small amount of money presently at stake relative to the potential costs to be incurred in these proceedings. In all the circumstances, especially given the amount in issue of $25,000, Mr Parsons from McDonald & Partners appears to have acted reasonably in managing the proceedings so far in the manner that he has. Nothing that is said in this judgment is a criticism of his conduct or Mr Cook’s conduct in the proceedings, on behalf of the defendants.

16. But that being said, the Court is most uncomfortable about making these orders. First, the Court wishes to receive some independent verification directly from Ms Lisakowska that she consents to the proceedings being discontinued. Secondly, the Court needs to be satisfied that the subject matter of the proceedings will not be dealt with to her disadvantage without her knowledge. Thirdly, the Court wishes to ensure that the discontinuance of these proceedings truly results in a quelling of this dispute, rather than the generation of another one.

17. As to the first of those three matters, Ms Lisakowska is at a disadvantage in giving her consent to these orders. An issue has been raised as to whether she has the capacity to consent to the orders. On the evidence before me, the plaintiff’s attorney has not sought her express consent to commence proceedings, where it might be expected her express consent would have been obtained. And she is communicating now with the Court not through her own solicitors, but through the solicitors for the opposing party. All of these circumstances inform the Court that she may well be in a position of special disadvantage in relation to these consent orders.

18. The Court is therefore reluctant to make these orders without greater confirmation that they are actually in her interests and that she does consent to them. They may indeed be in her interests. At one level, at least they do not appear to be strongly antithetical to her interests. And the Court is not of its own motion propounding the view that they are not in her interests. But the Court is not assured that they are, because of the disadvantages which I have set out above.

19. The principal and most immediate of the plaintiff’s disadvantages is the second matter which the Court has raised: namely, that she is not communicating directly with the Court about her consent to this discontinuance. The only instruments of her communication with the Court are two persons who have strong conflicts of interest with her. One is the defendants, on the opposing side of these proceedings. The other is Mr Bogoevski, against whom she has taken out an apprehended violence order. Neither of these avenues is a satisfactory way for a party to proceedings to communicate their consent to the Court to end the proceedings by consent.

20. This is a particularly acute problem in circumstances where Mr Bogoevski commenced these proceedings without telling his wife about them. Prayer 1 of the relief claimed is: "a claim for deposit moneys $25,000 deposit, held in neutral solicitor's trust account". Prayer 2 sought, "orders…for payment out of such moneys to the plaintiff.”

21. The address for service of a party is normally their residential address: Sheen v Burke [1993] 1 VR 584. The address for service given for the plaintiff in the Summons by Mr Bogoevski is only his residential and email address. Ms Lisakowska wishes to keep her residential address a secret from him. She has not filed an address for service, or a change of address for service, of her own: Uniform Civil Procedure Rules 2005 Rules 4.6, 7.3A.

22. From the evidence, from the form of the summons and from the prayers for relief, it seems that Mr Bogoevski seeks the payment nominally to the plaintiff but would have potentially been in a position where, were the proceedings successful, payment of the deposit of $25,000 would have been made to him. He, rather than her, would have been in control of these funds in their matrimonial property disputes.

23. So far as the Court is aware, proceedings for property settlement between Ms Lisakowska and Mr Bogoevski have not been commenced. Of course, this is of no interest to the defendants.

24. The Court will therefore make orders for the matter to be adjourned for a few days so Ms Lisakowska can communicate with the Court to overcome these disadvantages and to make clear whether or not, with the benefit of legal advice if she chooses, she does consent to this proposed discontinuance: see UCPR, r 12.1.

25. The third matter is that the Court is unsure that the orders that are proposed to be made here will quell the dispute which was raised by these proceedings.

26. The Court has a duty to quell disputes when proceedings end, and not provoke future proceedings. The Court is concerned that if these proceedings are discontinued, without the plaintiff having an opportunity to take any further steps to secure the deposit, that it may be paid out to the defendants in circumstances where the plaintiff may want to recover it by commencing further proceedings. That concern may not be well founded, but Mr Cook is not in a position to tell me it is not. But the terms on which the $25,000 is held in the trust account of Hynes & McCormack is unknown and is of interest to the Court. Unless the Court understands that other proceedings will not break out about the deposit, the Court is unwilling to discontinue these proceedings. The Court can use this opportunity to stabilise the position before any discontinuance takes place.

27. The Court has taken the unusual course here of publishing reasons for judgment upon an adjournment. The reason why the Court has done so is that it wants these reasons clearly communicated to two persons who are not present. The first is Messrs Hynes & McCormack, who are said to be the neutral solicitors holding these funds. And the second is Ms Lisakowska herself.

28. The Court will direct that these reasons be given to them, with a view to them communicating by some means with the Court. Ms Lisakowska should communicate about whether (after taking legal advice if necessary) she does consent to these orders. And Messrs Hynes & McCormack should communicate about whether (if they can) the contest between the plaintiff and the defendants about the $25,000 part deposit will be quelled by this settlement.

29. The Court makes orders and gives directions, as follows:

1. Adjourn these proceedings before the Duty Judge for further mention at 2pm on Friday, 6 September 2019 with a view to them being finalised on that date, and so (a) the Court can also make orders securing or dealing with the disputed deposit funds the subject of these proceedings and (b) for the Court to be assured by some direct means that the plaintiff agrees with any consent orders being proposed to the Court.

2. Direct that a copy of these orders and of the Court’s reasons for decision today be given to Messrs Heinz & McCormack solicitors of Murwillumbah and the solicitors for the defendant, McDonald & Partners, with a request they be immediately privately forwarded to Ms Lisakowska, the plaintiff.

3. Further direct the solicitor for the defendants to provide to the Court (without copying in Mr Bogoevski) the email address at which they have been corresponding with the plaintiff.

4. The Court notes that should she wish to take the opportunity to seek independent legal advice before consenting to the settlement she will be given that opportunity. The Court notes that in light of the apparent revocation of her power of attorney, the Court seeks by some authenticated means to ensure that it is dealing with Ms Lisakowska herself.

5. The plaintiff, Ms Lisakowska, is at liberty upon receipt of the Court’s judgment, to communicate directly with my Associate at email: [email protected] without copying in Mr Bogoevski, indicating her response to these orders and her wishes for the future disposition of these proceedings.

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Decision last updated: 03 September 2019