Orlovicic v Todorovic

[2007] NSWSC 798

CITATION:	Orlovicic v Todorovic [2007] NSWSC 798 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13/07/07
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	13 July 2007
DECISION:	Writ of possession granted. Mesne profits refused. Costs order on ordinary basis.
CATCHWORDS:	PROCEDURE - Miscellanous Procedural Matters - Amendments - Order for possession - Mesne profits - Indemnity costs - No principles involved
PARTIES:	Mario Orlovcic - Plaintiff Mico Todorovic - Defendant
FILE NUMBER(S):	SC 1973/06
COUNSEL:	Mr L Judd - Plaintiff
SOLICITORS:	Kydon Segal Lawyers - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 13 JULY 2007

1973/06 MARIO ORLOVICIC V MICO TODOROVIC

EX TEMPORE JUDGMENT

1 The first matter before the court is a notice of motion by the plaintiff, Mario Orlovcic, seeking leave to file an amended statement of claim. That amended statement of claim varies the description of the land, an order for possession of which is sought. I am satisfied that that document was served and came to the attention of the defendant, Mico Todorovic, who does not appear in these proceedings.

2 The affidavits of Mr Wright, which I gave leave to read, indicate that the amended statement of claim was left at premises occupied by Mr Todorovic. In an affidavit by the solicitor for Mr Orlovcic, a conversation with Mr Todorovic is set out in which Mr Todorovic said to the solicitor he had received the documents left at the property. Those documents included the notice of motion with the appended form in which the statement of claim was to be amended.

3 It is now sought, however, to further amend the statement of claim to not only include the variations in the description of the property to which I have referred, but also to include a new claim in the following terms:

"Claim for mesne profits for the property referred to in order 1 representing the amount of rent which would otherwise have been payable at $120 per week from the date of service of the Statement of Claim.”

4 In the course of the conversation between Mr Orlovcic’s solicitor and Mr Todorovic, the solicitor said to Mr Todorovic:

"I am instructed that my client wishes to amend its claim against you to include a claim for unpaid rent or mesne profits. We will seek leave to file an amended claim tomorrow. It is in your interests that you appear in Court and defend that claim."

To which Mr Todorovic replied:

"I not come Court. I have no money to pay your client. If Court tell me to pay your client good luck to him. I no pay. I’m pension. Two to three weeks after operation I move out. Good luck your family."

5 I am satisfied that Mr Todorovic was informed of the nature of the further amendment that is sought and I give leave to file in court an amended statement of claim initialled by me and dated by me.

6 The second issue is whether Mr Orlovcic should be granted an order for possession of the premises. He is the administrator of the estate of his late father, letters of administration having issued to him. Originally, the letters of administration merely granted him administration as no will had then been found. Subsequently, a will was found and letters of administration with the will annexed were granted to him.

7 Mr Todorovic filed a cross-claim and served and filed a number of affidavits. In these proceedings I treat those affidavits as though they had been read in court.

8 The principal asset of the estate is land at 17 Calala Street, Mt Druitt in New South Wales. Mr Todorovic has resided in those premises since about 1988. He says that there was an oral agreement with the deceased, that should he pay the rates, insurance and outgoings with respect to the property and look after its upkeep, he would be entitled to a first offer to purchase the property.

9 Subsequently, he says he was given permission to effect improvements to the property, which he did. He says that the oral agreement included a provision that the price at which the first offer of refusal was applicable would be the market value of the property less the market value of the improvements effected by him.

10 The principal relief sought by Mr Todorovic in his cross-claim is an order that the property be offered to him for purchase at the value determined by valuation less the increase in market value effected by his improvements or that the value effected by his improvements be paid to him out of the proceeds of sale of the property.

11 Mr Todorovic retained a valuer, Tim Elliot, to provide a report. Mr Orlovcic agreed to him being the sole valuer. That report indicates that the highest and best use of the land is as a vacant residential allotment and that the improvements effected by Mr Todorovic have not added value to the premises.

12 In those circumstances, I dismiss the cross-claim and order Mr Todorovic to pay Mr Orlovcic’s costs. I will grant Mr Orlovcic an order for possession of the premises.

13 The third issue is whether I should order Mr Todorovic to pay mesne profits. The evidence of Mr Todorovic was that the deceased required him to pay the rates and other outgoings on the property as a condition of his remaining in possession. Mr Todorovic deposed to a conversation with the deceased which included the deceased saying: "Anything which is wrong with the house such as electricity or the boiler or anything like that you have to fix it up yourself. You will have to pay the council rates, the insurance, the water and all the expenses on the property. You will have to cut the grass, paint the house and look after it and maintain it." Mr Todorovic said he replied: “OK.”

14 An exhibit to one of Mr Todorovic’s affidavits makes good his claim that he paid outgoings with respect to the premises. It contains a series of invoices and receipts. In those circumstances I am not prepared to make an order for mesne profits.

15 In the conversation between Mr Todorovic and the solicitor for Mr Orlovcic to which I have referred, the solicitor says that Mr Todorovic informed him that he was to have a back operation on 17 July 2007.

16 It seems to me appropriate that the writ for possession not issue until after that date. I make an order for possession in terms of paragraph 1 of the statement of claim and an order for leave to issue a writ of possession over the land described in paragraph 1 on or after 31 July 2007.

17 Mr Orlovcic seeks an order for indemnity costs. The report of Mr Elliot placed a value on the property of between $210,000 and $220,000.

18 On 10 April 2007, Mr Orlovcic’s solicitors made an offer that the property be transferred to Mr Todorovic upon payment of $215,000. That offer followed an offer on behalf of Mr Todorovic to have the property purchased for $160,000 by a third party.

19 In my view Mr Todorovic was entitled to reject the offer at $215,000. The amount is the mean of the range of value attributed to the property by the valuer. It represents an offer to have Mr Todorovic capitulate rather than, in my view, representing a genuine offer of compromise at an amount less than the market value of the property.

20 I decline in those circumstances to make an order for indemnity costs. I order Mr Todorovic to pay Mr Orlovcic’s costs of the claim.

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25/07/2007 - Typo in name of the Plaintiff - Paragraph(s) Body of the decision