Maletic v Stefanovic - [2009] SAWC 16

Wardens Court of South Australia
(District Court Administrative and Disciplinary Division)
MALETIC v STEFANOVIC
[2009] SAWC 16
Judgment of Warden Sprod
15 June 2007
MINING LAW
Prescious Stones Claim: Partnership Dispute

MALETIC v STEFANOVIC
[2009] SAWC 16

This plaint was filed by Milislav Maletic on 28 May 2007 and sought an injunction preventing mining on Precious Stones Claim registered number 80395 and a judgment for a pecuniary sum of $30,000. The plaint named Kristina Stefanovic as the respondent. An interim injunction was granted on 31 May 2007 by the Senior Warden preventing the respondent from mining the claim or using any of the equipment that the plaintor sought to establish that he had an interest in. The matter was listed for trial at Coober Pedy on 6 June 2007.
On 6 June Mr Maletic appeared and Mr Slobodan Stefanovic appeared, but the respondent did not.
Despite the precise wording of the plaint, this claim relates to the machinery that was the property of a partnership between Mr Maletic and Mr Stefanovic, and which was used for opal mining purposes. It was clear to me that the injunction was sought merely to preserve the partnership machinery, and that this dispute was really between Mr Maletic and Mr Stefanovic, and accordingly I ordered that Mr Stefanovic be substituted for Kristina Stefanovic, who is his daughter. ‘
In my view this court has jurisdiction to hear and determine this claim, and I refer to the terms of s.72(2a) of the Opal Mining Act 1995.
The hearing of this matter did not take the usual or normal course of a hearing of this kind, although hearings of this particular kind often do not.
When Mr Stefanovic appeared on 6 June 2007 he said that he had only received notice of the injunction and of this trial on Monday, 4 June 2007, which was only two days before the scheduled trial. Mr Stefanovic sought an adjournment as he claimed he had had an insufficient opportunity to arrange for the attendance of witnesses. When questioned by me about that he said that he wanted to call people known as Chicago and Paul, who he claimed could give relevant evidence about the claim.
After I conferred by telephone with the Senior Warden I indicated to the parties that I was considering an ajournment, but I pointed out to them that that may necessitate a lengthy adjournment, and if that occurred then the present interim injunction would remain. I was made aware that most of the machinery was out on the field, and the tunnelling machine was underground, and so obviously the sooner the claim was resolved the better. Both parties agreed. I then indicated to the parties that I wished to discuss the issues with them on an informal basis so that the trial, whenever it occurred, was limited to the actual issues of importance. I was aware even at this stage from comments made by one or other of them that there were other issues between them that were unrelated to the claim.
Over a period of about two hours we then discussed, using that term in its broadest sense, what this dispute was really all about.
By way of background I became aware that an agreement in writing in the Serbian language, dated 15 June 2005, recorded the sale by Mr Stefanovic to Mr Maletic of a 50 per cent share in the mining equipment in dispute for the sum of $35,000. The only accredited Serbian interpreter here at Coober Pedy is Father Radomir, and although the Registrar was successful in contacting him, he was unavailable as he was conducting a large Serbian funeral that day. As it turned out his services were not required.
After that purchase of the 50 per cent share in the machinery the parties conducted a mining partnership using the equipment to mine opal and dividing the net earnings on a 50/50 basis. That partnership continued until other unrelated issues intervened, and the parties terminated the partnership. There is a dispute between them as to when the partnership finished. During the course of the partnership I was told a book was kept and it recorded the partnership costs in operating the partnership, which were to be borne equally by the parties. I was told that there had been a settlement of the book on 8 November 2006, which coincided with the tunnelling machine being brought to the surface. Mr Maletic asserted that that was the day that the partnership concluded, but Mr Stefanovic said it continued until 20 April 2007, a difference of about six months. Both agreed that the machinery was not used between those dates.
Both parties talked about adjustments that were due to be paid by one or the other of them for partnership costs both pre 8 November 2006 and post that date.
In the early stages of our discussions this dispute seemed to relate in part to the history of the claim that the machinery was now on, namely the claim pegged by Mr Stefanovic’s daughter, Kristina. This plaint came about when Mr Maletic discovered that Mr Stefanovic was using the equipment to mine that claim. In the past Mr Maletic’s pegs had been on the claim, and at one time Mr Stefanovic’s pegs had been on the claim. That was apparently in the partnership days.
As the discussions progressed it became obvious that Mr Maletic wanted to sell his interest in the machinery back to Mr Stefanovic, who wanted to purchase it, and the only dispute between the parties was the purchase price, and possibly any adjustment for money spent by the parties on the equipment before 8 November 2006, or after that date. The witnesses previously mentioned by Mr Stefanovic seemed irrelevant.
Before the luncheon adjournment I discussed this with both parties who, in particular Mr Stefanovic, agreed that the claim, insofar as it resulted in a claim for $30,000, should be resolved by a consideration of the evidence of each of them supported by any documents that they might have, and that other witnesses would not assist the court in deciding that issue. I indicated to both parties that I could proceed to hear the matter on that basis if they so wished after the luncheon adjournment. Mr Stefanovic withdrew his application for the adjournment, and both parties agreed that the trial should proceed on the basis discussed.
I first heard the evidence of Mr Maletic, who confirmed purchasing a 50 per cent interest in the machinery described in his evidence for the sum of $35,000, on 15 June 2005. The machinery consisted of a blower on a truck with a 120 kilowatt generator set, a tunnelling machine and a trailer, a Nissan four wheel drive motor vehicle, a smaller generator, a rope ladder, and other mining tools not specified, and other unspecified mining equipment. He told me that they used the equipment in the partnership bearing one half each of the costs. He said that that arrangement continued until 8 November 2006, when the tunnelling machine was brought up to the surface and was repaired by the partnership, but that the equipment was not used thereafter. He said at that stage he had contributed $660 more to the partnership than Mr Stefanovic had, and said that Mr Stefanovic also had failed to purchase 200 litres of diesel fuel for the partnership’s use, valued at $300, so he claimed Mr Stefanovic owed $960 to the partnership. During the pre-trial discussions, Mr Stefanovic detailed 25 items of expense incurred after 8 November 2006, which he claimed should be offset in his favour, and amounted to between $6,000 and $7,000. During his evidence I asked Mr Maletic to comment on each item. As to each he said that they were not partnership expenses, as the partnership was over, and that the expenses either related to those associated with running the four wheel drive motor vehicle that Mr Stefanovic had exclusive use of, or related to expenses involved in mining his daughter’s claim, which he had no interest in. I do not intend to set out those 25 items in these reasons, as in view of other evidence adduced by the parties it was clear that no accounting of them was required.
Mr Maletic told me of a meeting he had with Mr Stefanovic on 25 May 2007, when all of these issues were argued about at length and at the end of which Mr Stefanovic agreed to pay $30,000 for his share in the machinery, and that the parties would effectively walk away.
Mr Stefanovic then gave evidence and he agreed with the 50 per cent purchase of the machinery by Mr Maletic on 15 June 2005, and that they operated as a partnership thereafter. He agreed that the tunnelling machine was brought up on 8 November 2006, and a settlement of the books was done on that day. He agreed with the $660 extra paid by Mr Maletic before 8 November 2006, but said he only owed 100 litres of diesel, as the 200 litres had never been purchased, and he claimed an adjustment was due in his favour for post 8 November 2006 expenses incurred by him on behalf of the partnership.
He claimed that the partnership continued to exist until when on 20 April 2007 Mr Maletic said he wanted to cancel it. He said that there was a meeting in May, but it was on 5, not 25 May, and says that he offered to buy back the 50 per cent share in the machinery, but only for $20,000. He said Mr Maletic agreed, but several days later wanted more. He said the agreement was $20,000, and he would pay in three months and says further because he was now the owner he began to use the machinery on his daughter’s claim, but now was prevented from doing so by this plaint.
Both parties agreed that the May discussions, on whatever day in May they took place, took into account the pre 8 November 2006 and post 8 November 2006 expenses, so that the only issue for the court was whether the agreed purchase price was $20,000 or $30,000. At this late stage I offered the parties another opportunity to settle, but they would not. I received into evidence the original agreement to purchase written in the Serbian language, with attached English transcription, tendered by Mr Maletic, which became Exhibit 1. I also received what the evidence referred to as the book, which was in fact two books and a quantity of invoices and receipts from Mr Stefanovic, which became Exhibit 2, and what is called a Rectification Notice, directed to Kristina Stefanovic, dated 4 May 2007, which became Exhibit 3.
I take the view that it is the civil onus of proof that applies to this claim, and the plaintor bears that onus of proof, which is proof on the balance of probabilities.
The transcript of the actual evidence taken in the course of the trial was simply as a reading of it would indicate a series of questions by me and answers by the witness, attempting to concisely set out the matters identified during the pre-trial discussions. Those pre-trial discussions were not recorded, however during the course of those discussions both parties had an unlimited opportunity to air their opinions and grievances.
They also questioned each other at length, confronted each other, and presented each other with documents that they said supported their positions.
I had over a lengthy period the opportunity to observe them both and reach conclusions as to their reliability.
Mr Maletic was, by comparison to Mr Stefanovic, quite calm and considered. He listened carefully to questions and was thoughtful and restrained. His answers focussed on the question and he limited in general his answers to those questions. His case, simply put, was that the partnership finished when the tunnelling machine came up and the book was reconciled. Later, he said, on 25 May 2007 he and Mr Stefanovic entered into an agreement that he would sell and Mr Stefanovic would purchase his interest in the mining equipment for $30,000.
Mr Stefanovic, on the other hand, said that the partnership finished on 20 April 2007, and that on 5 May 2007 an agreement was reached that he would buy back the 50 per cent share of the machinery, but for $20,000.
My observations of Mr Stefanovic were that he did not listen carefully to questions asked of him, was not considered in his responses, was particularly argumentative, and simply repeated himself loudly over and over again in the hope that the statement of his beliefs would overbear any contrary beliefs. His assertions were not convincing.
The various documents upon which he relied, which are not relevant to any accounting exercise, do give me some assistance in assessing his reliability as a witness. For example, one invoice for $327 for trailer repairs was dated 31 March 2005, which was before Mr Maletic even purchased his one half share of the equipment. Mr Stefanovic was quite clearly trying to mislead the court into believing that those repairs should be a partnership expense. Other invoices are in the names of Sammy Wong Mining and S and T Stefanovic/Stefanovic Opals, which seem to have no relationship to the partnership between Mr Maletic and Mr Stefanovic.
In addition there are receipts relating to the pegging of Kristina Stefanovic’s claim that show she pegged Precious Stones Claim 80395 on 4 December 2006. This is evidence which in my view supports Mr Maletic’s case that the partnership was determined in November 2006, and not, as Mr Stefanovic says, in April 2007.
I was in no doubt about who was telling me the truth and who was not. I accept the evidence of Mr Maletic and reject that of Mr Stefanovic where it conflicts with the evidence of Mr Maletic. In particular, I find that the partnership concluded on 8 November 2006, and that an agreement was reached on 25 May 2007 that Mr Stefanovic purchase the plaintor’s share in the mining equipment for $30,000. There will accordingly be a judgment for the plaintor, Milislav Maletic, against the respondent, Slobodan Stefanovic, for $30,000, together with the issue fee of $46.
I direct that the interim injunction imposed by me on 6 June 2007 remain in force until the entire judgment sum and issue fee has been paid, and I remind that parties that a breach of the injunction would be a contempt of this court and punishable by imprisonment.
Either party is entitled to appeal this decision within one month to the Environment, Resources and Development Court. At the appropriate time I request the Registrar to return Exhibit 1 to Mr Miletic, and Exhibits 2 and 3 to Mr Stefanovic