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Macura v Sarasevic

Macura v Sarasevic

Case [2019] NSWSC 1409 18 October 2019

Appeal

Contract Formation

Mental Incapacity

Civil Litigation & Procedure

Contract Law

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Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Macura v Sarasevic [2019] NSWSC 1409
Hearing dates: 23, 24, 30 April and 3, 10 May 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Declare that the parties have reached a settlement agreement as set out in the Short Minutes of Orders signed by the parties on 20 March 2018 (annexure A to the Notice of Motion filed by the defendants on 16 May 2018), and formalised in the Short Minutes of Orders signed by the parties’ solicitors on 23 March 2018 (annexure B to the Notice of Motion filed by the defendants on 16 May 2018)
2.   Order that:
a.   the plaintiff receive by way of provision out of the estate of the late Milorad Adzic, a lump sum of $100,000;
b. no interest be paid on the lump sum if paid within 28 days of the date of these orders; otherwise, interest is to be paid on any unpaid part of the lump sum, calculated at the rate prescribed for the payment of interest on unpaid legacies under s 84A(3) of the Probate and Administration Act 1898 (NSW), until paid in full;
c.   the settlement sum of $100,000 referred to in Order 2(a) above (less the sum the subject of Order 5 below) be paid into court pending the resolution of the dispute as to costs between the plaintiff and his former solicitors, VC Lawyers and the determination of any claim by the defendants to set-off, as against the settlement sum, any amounts owing to the defendants by the plaintiff in respect of the occupation fee the subject of orders made earlier in these proceedings and the costs orders made in these proceedings;
d.   the plaintiff vacate the unit situated and known as 8/7 Short Street, Liverpool (the unit at the Liverpool property), within 30 days of the date of these orders;
e.   in the event that the plaintiff fails to vacate the unit at the Liverpool property within the time specified in Order 2(d) above, the defendants have leave to issue a writ of possession forthwith after that date.
f.   there be no order as to the plaintiff’s costs of the proceedings, to the intent he will bear his own costs of the proceedings;
g.   the defendants’ costs of the proceedings, up to and including 20 March 2018, calculated on an indemnity basis, are to be paid out of the estate of the late Milorad Adzic;
h.   the cross-claim be dismissed;
i.   no order as to costs of the cross-claim;
j.   the balance of the statement of claim be dismissed;
3.   Order that the plaintiff pay the costs of the defendants of the proceedings from and including 23 March 2018 on the ordinary basis.
4.   Order that the plaintiff’s tutor, Lawrence Myers, indemnify the defendants for any costs payable by the plaintiff pursuant to these orders (and unpaid by the plaintiff) in…

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 Macura v Sarasevic

Details

AGLC: Macura v Sarasevic [2019] NSWSC 1409
Case: [2019] NSWSC 1409
Decision Date: 18 October 2019

CaseChat Overview and Summary

The plaintiff, Macura, sought an adjournment of the hearing to obtain further medical evidence, and the defendants, Sarasevic, opposed the adjournment. The case was before the court, which needed to decide whether the adjournment was warranted under the principles set out in Aon Risk Services Australia Limited v Australian National University. The court also needed to determine whether the settlement agreement reached at mediation should be set aside due to the plaintiff's lack of capacity, and whether the defendants were aware of this incapacity.

The court considered the principles in Aon Risk Services Australia Limited v Australian National University, which required it to weigh the prejudice suffered by the parties and other litigants due to the delay against the importance of the new evidence. The court found that the plaintiff had already had multiple opportunities to obtain further medical evidence and that the adjournment would cause significant prejudice to the defendants and other litigants. Therefore, the application for adjournment was dismissed.

The court also considered the issue of capacity, finding that the plaintiff lacked the requisite capacity to enter into the settlement agreement due to mental incapacity. However, the court found that the defendants did not have actual or constructive knowledge of this incapacity, and therefore the settlement agreement should not be set aside. The court found that the defendants were not aware of the plaintiff's lack of capacity to provide proper instructions or to agree to a settlement of the proceeding.

The court dismissed the plaintiff's application for an adjournment and found that the settlement agreement should not be set aside. The court did not make any orders regarding the merits of the case, as the adjournment application and the capacity issue were preliminary matters that needed to be resolved before proceeding to the substantive issues.

Orders