Stankovic v Stankovic

[2007] NSWSC 814

CITATION:	Stankovic v Stankovic [2007] NSWSC 814
HEARING DATE(S):	4 July 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	4 July 2007
DECISION:	Hearing date vacated
CATCHWORDS:	PROCEDURE – adjournment – taking of accounts – unrepresented litigation – where one party granted considerable indulgences – fairness dictates that other be granted indulgences
PARTIES:	Milovan Stankovic (plaintiff) David Stankovic (first defendant) Milka Stankovic (second defendant) Sasha Stankovic (third defendant) Arthur Samyia (fourth defendant) Jennifer Samyia (fifth defendant)
FILE NUMBER(S):	SC 5100/05
COUNSEL:	Milovan Stankovic (plaintiff) (in person) David Stankovic (first defendant) (in person)
SOLICITORS:	Sheathers Lawyers (D 2-5)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Wednesday 4 July 2007

5100/05 Milovan Stankovic v David Stankovic & 4 Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: In these proceedings the plaintiff Milovan Stankovic seeks an accounting in respect of moneys obtained by the first defendant for the purpose of the development of land at 2 Teatree Way, Kellyville. A substantial part of the proceedings were disposed of by orders made on 17 October 2005, which included order 5, as follows:

An account be taken by an Associate Judge between the plaintiff and the first defendant in respect of -
(a) the disposition of all moneys obtained for the purpose of the development of a dwelling upon [2 Teatree Way, Kellyville]; and
(b) the disposition of the proceeds of sale of the said property.

2 On 11 November 2005, directions were made with a view to the taking of accounts, including for the plaintiff to produce certain documents by 18 November 2005, and for the first defendant to issue subpoenas returnable on 5 December 2005, and thereafter, by 16 December, to serve his affidavit of accounts. The directions then proceeded to make provision for the form of the accounts, and for interrogatories on the accounts, and for the plaintiff to serve his surcharges, falsifications and objections by 17 February 2006.

3 The proceedings were stood over to 26 February 2006, by which time it appears that absolutely nothing had happened because on that day, time for compliance with the first directions – that is, the production of the documents by the plaintiff – was extended to 7 March 2006. It seems that still nothing happened because on 20 March 2006, the first defendant filed a Motion seeking to set aside the orders for taking of accounts, apparently on the basis that the documents the subject of the first direction, had still not been produced.

4 Directions were made on 24 March, when that Motion was returnable, for the plaintiff to file affidavits in response to the Motion. Nothing happened, but I infer that the documents were produced because on 21 April 2006, the first defendant's Notice of Motion was dismissed, but the plaintiff was ordered to pay the costs of the motion.

5 On 5 May 2006, further directions were made for the first defendant to issue subpoenas returnable on 29 May and to serve by 16 June his affidavit of accounts. Consequential directions were made as to the form of accounts and for interrogatories, and for filing of surcharges, falsifications and objections and vouching. It appears absolutely nothing happened, because when the matter returned to Court on 4 August 2006 further directions were made in identical form, providing for the first defendant now to issue subpoenas returnable on 18 August, and to serve his affidavit of accounts by 25 August.

6 On 25 August 2006, the proceedings were stood over to 13 October 2006. There was no appearance on behalf of the first defendant on that occasion, and the Registrar referred the matter to chambers; and on 7 November 2006, again apparently in the absence of the first defendant, placed the matter in the General List callover on 14 March 2006 when, yet again in the absence of the first defendant, the proceedings were set down for hearing before me on 12 July for two days, with pretrial directions being appointed for 10 April 2007.

7 The Court notified the parties of the appointment for pretrial directions and the first defendant appeared when the matter came before me for pretrial directions on 10 April 2007. I then extended time for the first defendant's affidavit of accounts up to 8 May 2007. That direction was not complied with, but ultimately an affidavit of accounts was filed on 13 June 2007 when the matter returned before me for further pretrial directions.

8 On that day I directed that the plaintiff, by 29 June, file and serve his surcharges, falsifications and objections. He has today provided to the Court an affidavit in purported compliance with that direction. However, I directed also that any subpoena be returnable before me today. The plaintiff says that due to ill health, of which he provides a medical certificate of sorts, he has been unable to attend to issuing of subpoenas, which he says are necessary. He wishes time to obtain some assistance and to issue such a subpoena. I have given some consideration as to whether that could be done in time for the hearing next week, but given that the plaintiff is presently unrepresented, I doubt that the exercise could usefully be completed within that time.

9 The first defendant has required considerable indulgences in order to be permitted to file his affidavit of accounts. In those circumstances, I think fairness demands that the plaintiff be afforded some similar indulgences.

10 It is quite clear this case was nowhere near ready when it was set down by the Registrar, and had the first defendant appeared on that occasion, I doubt that it would have been set down. I will, therefore, make, yet again, further directions to prepare the matter for hearing. The parties need to understand that if these directions are not complied with, they are at serious risk, in the plaintiff's case that the matter will be dismissed, and in the defendant’s case that the matter will proceed in default.

11 I, therefore, make the following directions:

(1) Vacate the appointment for hearing appointed to commence before me on 12 July 2007 for two days.

(2) Appoint Wednesday 1 August 2007 at 9am before the Registrar for return of subpoenas.

(3) Direct that the plaintiff and the first defendant may, on or before 15 August 2007, examine the other party upon interrogatories in respect of the accounts, surcharges, falsifications and objections.

(4) Direct that the answers to any such interrogatories be verified on oath and served upon the interrogating party by 5 September 2007.

(5) Stand over the proceedings to Friday 31 August at 10am before me in the Expedition List for further directions.

(6) Grant liberty to the plaintiff and the first defendant to apply on three days' notice, any such notice to specify the directions to be sought.

(7) Direct that these orders be entered forthwith.

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