Saravinovski v Saravinovska - [2016] NSWCA 310

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Saravinovski v Saravinovska [2016] NSWCA 310
Hearing dates: 14 November 2016
Decision date: 14 November 2016
Before: Basten JA
Decision:
In matter 2016/239390:

The Court without admissions:

1.   Notes that upon the appellant Chris (Krste) Saravinovski, through his tutor and by senior counsel giving to the Court the usual undertaking as to damages, the respondent Maria Saravinovska (as executrix of the estate of the late George Saravinovski) undertakes to the Court:
(a)   not to further deal with or encumber the property at 7 Wharf Road, Kogarah NSW, being the land in Folio Identifier 2/8/1963 (the No 7 Property), but such undertaking shall not restrict the respondent from entering into and completing any Contract for Sale in relation to the No 7 Property, provided such sale occurs at a price of not less than $1,650,000.00 and the settlement period is not less than 42 days; and
(b)   within 2 days of the respondent entering into any Contract for Sale in relation to the No 7 Property, the respondent shall notify the appellant of the sale in writing and provide a copy of the entered Contract for Sale pertaining to the sale.

2.   Upon the appellant through his tutor and by his senior counsel giving to the Court the usual undertaking as to damages stays until further order or determination of this appeal further execution of orders 1-3 of the orders made in New South Wales Supreme Court proceedings 2012/39748 on 7 September 2016.

3.   Grants liberty to the parties to forthwith approach the Registrar for allocation of a final hearing together with appeal proceedings No. 2016/233724.

4.   Otherwise adjourns the notice of motion of the appellant filed 25 October 2016 to the final hearing of the appeal, if necessary.

5.   Grants liberty to the parties to apply to relist the matter on 3 days' notice.

6.   Orders that the costs of the motion be costs in the appeal.

In matter No. 2016/233724:

The Court without admissions:

1.   Upon the Appellant through his tutor and by his Senior Counsel giving to the Court the usual undertaking as to damages, stays until further order or determination of this appeal further execution of:
(a)   orders 1, 3 and 4 made in New South Wales Supreme Court Proceedings 2011/361081 in the Court below on 8 August 2016, and
(b)   orders 1-4 and 10-18 made in New South Wales Supreme Court Proceedings 2011/361081 in the Court below on 7 September 2016.

2.   Upon the Appellant through his tutor and by his Senior Counsel giving to the Court a further undertaking that the Appellant will not deal with or dispose of any interest in the property contained in Folio Identifier B/365145, stays further execution of order 2 made in the Court below on 8 August 2016 up to the day which is 14 days after further order or the determination of this Appeal.

3.   Grants liberty to the parties to forthwith approach the Registrar for allocation…

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 Saravinovski v Saravinovska

Details

AGLC: Saravinovski v Saravinovska [2016] NSWCA 310
Case: [2016] NSWCA 310
Decision Date: 14 November 2016

CaseChat Overview and Summary

In the matter of *Saravinovski v Saravinovska*, the appellant, Chris (Krste) Saravinovski, sought a stay of execution of certain Supreme Court of New South Wales orders pending the determination of his appeals. The respondent, Maria Saravinovska, as executrix of the estate of the late George Saravinovski, was involved in the proceedings concerning properties at 7 Wharf Road, Kogarah NSW, and another property identified by Folio Identifier B/365145.

The primary legal issues before the Court concerned whether to grant an interlocutory injunction pending appeal and whether to grant a stay of execution of specific Supreme Court orders. These applications were made on the basis that the appellant had arguable grounds for appeal, and the Court was required to consider the balance of convenience in determining whether to grant the requested relief.

The Court resolved the matter by noting undertakings given by the appellant and the respondent. The appellant, through his tutor and senior counsel, provided the usual undertaking as to damages. In response, the respondent undertook not to further deal with or encumber the No 7 Property, except to enter into and complete a Contract for Sale at a price of not less than $1,650,000.00 with a settlement period of not less than 42 days. The respondent also undertook to notify the appellant in writing of any such sale and provide a copy of the contract. The Court then stayed further execution of specific Supreme Court orders pending the determination of the appeals, with liberty to the parties to approach the Registrar for allocation of a final hearing. The costs of the motions were made costs in the appeal.

Orders

Orders of the court

In matter 2016/239390:

The Court without admissions:

1. Notes that upon the appellant Chris (Krste) Saravinovski, through his tutor and by senior counsel giving to the Court the usual undertaking as to damages, the respondent Maria Saravinovska (as executrix of the estate of the late George Saravinovski) undertakes to the Court:

(a) not to further deal with or encumber the property at 7 Wharf Road, Kogarah NSW, being the land in Folio Identifier 2/8/1963 (the No 7 Property), but such undertaking shall not restrict the respondent from entering into and completing any Contract for Sale in relation to the No 7 Property, provided such sale occurs at a price of not less than $1,650,000.00 and the settlement period is not less than 42 days; and

(b) within 2 days of the respondent entering into any Contract for Sale in relation to the No 7 Property, the respondent shall notify the appellant of the sale in writing and provide a copy of the entered Contract for Sale pertaining to the sale.

2. Upon the appellant through his tutor and by his senior counsel giving to the Court the usual undertaking as to damages stays until further order or determination of this appeal further execution of orders 1-3 of the orders made in New South Wales Supreme Court proceedings 2012/39748 on 7 September 2016.

3. Grants liberty to the parties to forthwith approach the Registrar for allocation of a final hearing together with appeal proceedings No. 2016/233724.

4. Otherwise adjourns the notice of motion of the appellant filed 25 October 2016 to the final hearing of the appeal, if necessary.

5. Grants liberty to the parties to apply to relist the matter on 3 days' notice.

6. Orders that the costs of the motion be costs in the appeal.

In matter No. 2016/233724:

The Court without admissions:

1. Upon the Appellant through his tutor and by his Senior Counsel giving to the Court the usual undertaking as to damages, stays until further order or determination of this appeal further execution of:

(a) orders 1, 3 and 4 made in New South Wales Supreme Court Proceedings 2011/361081 in the Court below on 8 August 2016, and

(b) orders 1-4 and 10-18 made in New South Wales Supreme Court Proceedings 2011/361081 in the Court below on 7 September 2016.

2. Upon the Appellant through his tutor and by his Senior Counsel giving to the Court a further undertaking that the Appellant will not deal with or dispose of any interest in the property contained in Folio Identifier B/365145, stays further execution of order 2 made in the Court below on 8 August 2016 up to the day which is 14 days after further order or the determination of this Appeal.

3. Grants liberty to the parties to forthwith approach the Registrar for allocation of a final hearing together with appeal proceedings No. 2016/239390.

4. Otherwise adjourns the notice of motion of the appellant filed 8 November 2016 to the final hearing of the appeal, if necessary.

5. Grants liberty to the parties to apply to relist the matter on 3 days' notice.

6. Orders that the costs of the motion be costs in the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Saravinovski v Saravinovska [2016] NSWCA 310
Hearing dates:	14 November 2016
Decision date:	14 November 2016
Before:	Basten JA
Decision:	In matter 2016/239390: The Court without admissions: 1. Notes that upon the appellant Chris (Krste) Saravinovski, through his tutor and by senior counsel giving to the Court the usual undertaking as to damages, the respondent Maria Saravinovska (as executrix of the estate of the late George Saravinovski) undertakes to the Court: (a) not to further deal with or encumber the property at 7 Wharf Road, Kogarah NSW, being the land in Folio Identifier 2/8/1963 (the No 7 Property), but such undertaking shall not restrict the respondent from entering into and completing any Contract for Sale in relation to the No 7 Property, provided such sale occurs at a price of not less than $1,650,000.00 and the settlement period is not less than 42 days; and (b) within 2 days of the respondent entering into any Contract for Sale in relation to the No 7 Property, the respondent shall notify the appellant of the sale in writing and provide a copy of the entered Contract for Sale pertaining to the sale. 2. Upon the appellant through his tutor and by his senior counsel giving to the Court the usual undertaking as to damages stays until further order or determination of this appeal further execution of orders 1-3 of the orders made in New South Wales Supreme Court proceedings 2012/39748 on 7 September 2016. 3. Grants liberty to the parties to forthwith approach the Registrar for allocation of a final hearing together with appeal proceedings No. 2016/233724. 4. Otherwise adjourns the notice of motion of the appellant filed 25 October 2016 to the final hearing of the appeal, if necessary. 5. Grants liberty to the parties to apply to relist the matter on 3 days' notice. 6. Orders that the costs of the motion be costs in the appeal. In matter No. 2016/233724: The Court without admissions: 1. Upon the Appellant through his tutor and by his Senior Counsel giving to the Court the usual undertaking as to damages, stays until further order or determination of this appeal further execution of: (a) orders 1, 3 and 4 made in New South Wales Supreme Court Proceedings 2011/361081 in the Court below on 8 August 2016, and (b) orders 1-4 and 10-18 made in New South Wales Supreme Court Proceedings 2011/361081 in the Court below on 7 September 2016. 2. Upon the Appellant through his tutor and by his Senior Counsel giving to the Court a further undertaking that the Appellant will not deal with or dispose of any interest in the property contained in Folio Identifier B/365145, stays further execution of order 2 made in the Court below on 8 August 2016 up to the day which is 14 days after further order or the determination of this Appeal. 3. Grants liberty to the parties to forthwith approach the Registrar for allocation…