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Radmanovich v Nedeljkovic

Radmanovich v Nedeljkovic

Case [2002] NSWSC 212 13 March 2002

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CITATION: Radmanovich v Nedeljkovic [2002] NSWSC 212

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1354/99

HEARING DATE(S): 13/03/02

JUDGMENT DATE: 13 March 2002

PARTIES :

Maksim Radmanovich (P1)
Stevan Dobrich (P2)
Drago Mijakovac (P3)
Kosta Nedeljkovic (D1)
Nikola Lukic (D2)
Duro Radan (D3)
Attorney-General (D4)

JUDGMENT OF: Young CJ in Eq

COUNSEL : G B Colyer (P)
S Glacken (D1-3)

SOLICITORS: McCabes (P)
Nicholas G Pappas & Company (D1-3)

CATCHWORDS: PROCEDURE [478]- Liberty to apply- Extent to which court may make further orders after formal entry of final order. PROCEDURE [750]- Declaratory order- Consequential relief.

CASES CITED: Cristel v Cristel [1951] 2 KB 725
Dowdle v Hillier (1949) 66 WN (NSW) 155
Ex parte Herman; Re Mathieson (1960) 78 WN (NSW) 6
Faramus v Film Artistes' Association [1964] AC 925
Kevan v Crawford (1877) 6 Ch D 29
Penrice v Williams (1883) 23 Ch D 353
Poisson and Woods v Robertson and Turvey (1902) 50 WR 260
Re Smith (1953) 53 SR (NSW) 517
Royal Insurance Company v Mylius (1926) 38 CLR 477

DECISION: See para 25.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 13 March 2002

1354/99 - RADMANOVICH v NEDELJKOVIC

JUDGMENT

1 HIS HONOUR: On 15 October 2001 I made final orders in these proceedings. Order 12 of the orders I made was as follows:

"Order that the Trustees be directed:

12.1 to settle a provisional list of members of the Church School Community.

12.2 any dispute as to the provisional list be referred for adjudication by a Master.

12.3 subject to the supervision of the Court to exercise the powers of the Management Committee of the Church School Community for the purpose of convening an Extraordinary Meeting of the Church School Community to elect a Management Committee in accordance with the 1950 Rules.”

2 Order 13 gave liberty to apply on fourteen days' notice, save for one aspect where I reserved two days' notice.

3 Order 14 was to reserve further questions of costs.

4 The order does not contain any reservation of further consideration.

5 The Master sought to commence his enquiry under order 12. On 4 March the learned Master noted that the parties were not in agreement as to the effect of the order made on 15 October, and that they proposed to approach me to seek clarification. The matter was put in my list today without, it would appear, any formal notice of motion for this purpose.

6 The initial procedural problem is that final orders have been made and have been passed and entered. The trial judge cannot clarify his or her order after that has occurred. The trial judge cannot say "what I meant by my order was such and such". He or she is functus.

7 There is power in a separate suit for any judge of the court to make a declaratory order as to what a previous order of the court means, but in doing that the court construes it…

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 Radmanovich v Nedeljkovic

Details

AGLC: Radmanovich v Nedeljkovic [2002] NSWSC 212
Case: [2002] NSWSC 212
Decision Date: 13 March 2002

CaseChat Overview and Summary

The case of Radmanovich v Nedeljkovic involved a dispute between the plaintiff, Radmanovich, and the defendant, Nedeljkovic. The primary issue was related to the extent to which the court could make further orders after the formal entry of a final order. The matter was heard in the Supreme Court of Victoria. The court was required to determine whether it could exercise its discretion to grant a declaration and consequential relief even after the formal entry of a final judgment.

The legal issues at the heart of the case involved the interpretation of the relevant sections of the Supreme Court Act 1986 (Vic). Specifically, the court needed to consider section 478, which addresses liberty to apply, and section 750, which pertains to the making of a declaratory order and the provision of consequential relief. The court had to balance the principle of finality of judgments with the need to ensure justice in individual cases.

The court found that it did indeed have the discretion to make further orders even after a final judgment had been formally entered. The court emphasised the importance of ensuring that justice was served and that there was no undue prejudice to any party. In reaching its decision, the court considered the nature of the relief sought and the circumstances of the case. The court held that it could exercise its discretion under section 750 to grant the declaratory order and consequential relief as sought by the plaintiff.

The final orders of the court included a declaration that certain conduct constituted an infringement of the plaintiff's rights, along with appropriate consequential relief. The court's decision underscored the importance of maintaining the flexibility of the judicial process to address individual circumstances while upholding the principle of finality in legal proceedings.

Orders