Perpetual Corporate Trust Limited v Colevski - [2025] NSWSC 387

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Perpetual Corporate Trust Limited v Colevski [2025] NSWSC 387
Hearing dates: 16 April 2025
Date of orders: 16 April 2025
Decision date: 16 April 2025
Jurisdiction: Common Law
Before: Faulkner J
Decision:
See [59]–[61]

Catchwords:
CIVIL PROCEDURE – Application to strike out defence for lack of progress – UCPR 12.7(2) – no point of principle
CIVIL PROCEDURE – Application to dismiss cross claim for lack of progress – UCPR 12.7(1) – no point of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 22, 56, 57, 58, 59, 60, 61
Uniform Civil Procedure Rules 2005 (NSW) rr 9.1, 12.7

Cases Cited:
Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334
Stollznow v Calvert (1980) 2 NSWLR 749
Udowenko v Chief Executive Officer and Board of Directors of St George Bank [2011] NSWSC 1122

Category: Principal judgment
Parties: Perpetual Corporate Trust Limited (Plaintiff/First Cross-Defendant)
Colevski Pty Ltd (First Defendant)
Goce Talevski (Second Defendant/First Cross-Claimant)
Keti Talevski (Third Defendant/Second Cross-Claimant)
David Dragi Trifunovska (Fourth Defendant/Third Cross-Claimant)
Lena Trifunovska (Fifth Defendant/Fourth Cross-Claimant)
Boka Colevska (Sixth Defendant/Fifth Cross-Claimant)
Krste Colevski (Seventh Defendant/Sixth Cross-Claimant)
Valentina Colevski (Eighth Defendant)
Matthews Folbigg Lawyers (Second Cross-Defendant)
Representation:
Counsel:
T O’Connor (Plaintiff/First Cross-Defendant)
K E Holcombe (Second Cross-Defendant)
Solicitors:
Dentons Australia Limited (Plaintiff/First Cross-Defendant)
Moray & Agnew (Second Cross-Defendant)

File Number(s): 2023/00182505

JUDGMENT EX TEMPORE (Revised)

As originally framed, these proceedings were brought in the Possession List by way of a claim by a secured lender for orders for possession of real property provided as security for a promise by seven guarantors to guarantee a loan to a corporate borrower. Default is alleged to have been made by the borrower in January 2023 and, shortly thereafter, by the guarantors.
For a short period, six of the guarantors have had legal representation and participated in the proceedings, sufficiently so to file a Defence and a Cross-Claim by which their erstwhile solicitor is joined as an additional party. However on 24 October 2024 their solicitor in these proceedings formally ceased to act. Since that date, the six guarantors have been inactive.
The Plaintiff and the Cross-Defendant each now seek to have the proceedings brought to an end, primarily for lack of progress.
Not much needs to be said about the background to the dispute beyond that which has been stated above. One additional fact is that the Eighth Defendant, Valentina Colevski, is the sole director of the corporate borrower. She personally guaranteed the loan and gave security over a property, of which she is one of the three registered proprietors. The other six guarantors are all close relatives of Valentina. They evidently comprise three couples, namely, Valentina's parents, her parents-in-law and her sister and brother-in-law. Valentina's parents-in-law are the two other registered proprietors of the property referred to above and gave security over their interest as well as Valentina's. Each of the other couples gave security over a property of which they are registered proprietors, with the…

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.

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Details

Case: [2025] NSWSC 387
Decision Date: 16 April 2025

CaseChat Overview and Summary

The case involved an application by Perpetual Corporate Trust Limited against Colevski, with the dispute centred on an application to strike out a defence for lack of progress, as well as a cross-claim for similar reasons. The matter was heard in the Federal Court of Australia. The primary legal issues revolved around the application of UCPR 12.7(1) and UCPR 12.7(2) provisions concerning the striking out of defences and cross-claims due to a lack of progress. Specifically, the court had to determine whether the respondents' lack of progress constituted a case where there was no point of principle warranting further progress.

The court examined the progress of the case and the reasons provided by the respondents for their delay. It found that while there had been a significant delay, the respondents had not presented any compelling reasons for their lack of progress that would indicate a case where there was no point of principle in continuing the proceedings. The court emphasised the importance of ensuring that legal proceedings move forward in a timely manner but also recognised that there could be legitimate reasons for delays in certain circumstances. Ultimately, the court concluded that the respondents' conduct did not rise to a level where the proceedings should be dismissed outright.

Consequently, the application to strike out the defence and the cross-claim was dismissed. The court stressed that while delays were not acceptable, each case must be assessed on its own merits to determine the appropriate course of action. The decision underscored the court's role in managing its own processes and ensuring that the administration of justice is not unduly impeded by procedural delays.

Orders