Vesuvius Australia Pty Ltd v and M Davidovic Pty Ltd

[2011] NSWSC 573

Supreme Court

New South Wales

Medium Neutral Citation:	Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 573
Hearing dates:	14 June 2011
Decision date:	14 June 2011
Jurisdiction:	Equity Division
Before:	Biscoe AJ
Decision:	Order for release of security deposit stayed until 24 June 2011
Catchwords:	ORDERS:-whether order for release of security deposit should be stayed for short period
Cases Cited:	Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 539
Category:	Procedural and other rulings
Parties:	Vesuvius Australia Pty Ltd (Plaintiff/First Cross Defendant) V & M Davidovic Pty Ltd (First Defendant/Cross Claimant) Paul Armitage (Second Cross Defendant)
Representation:	COUNSEL: Mr P Russell, barrister (Plaintiff/First Cross Defendant) Mr M Davidovic in person (Director of the First Defendant/Cross Claimant) SOLICITORS: Pikes Lawyers (Plaintiff/First Cross-Defendant)
File Number(s):	2010/0084991

EX TEMPORE Judgment

1. I gave judgment in this matter on 9 June 2011, holding that the plaintiff was entitled to the release of a security deposit: Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 539. On 10 and 14 June 2011 Mr Davidovic, a director of the defendant company and its representative at the hearing, sent my Associate emails which appear to indicate a wish to call evidence bearing on the question of the release of the security deposit. Copies of those emails were provided by my Associate to the plaintiff's solicitors. I re - listed the matter before me this afternoon.

1. Mr Davidovic has now indicated that his concern is with Order 6 made on 9 June 2011 in the following terms:

Order that within three business days of the date of this order, the defendant do all things and execute all such documents as may be necessary to procure the release of the funds standing to the credit of such account and deliver such documents to the solicitors for the plaintiff.

1. I cannot see any basis for re - opening my earlier judgment, if that is what Mr Davidovic was suggesting. He is, however, labouring under the difficulty that he is a layman and has had no legal advice as to what course, if any, he should be taking. As mentioned in my earlier judgment, Mr Davidovic indicated that the defendant company is not able to fund legal advice and representation at the moment but is expecting receipt of substantial funds within a couple of weeks which it intends to use to retain lawyers. If, for example, it were then decided on legal advice to appeal my decision and the appeal were instituted, the funds would in the meantime have been paid out of the account as a result of Order 6. The plaintiff opposes any stay of Order 6. In my view, in the circumstances, it is appropriate to order a stay for a reasonably short period to give the defendant the opportunity to fund and obtain legal advice in respect of my judgment. Mr Davidovic has indicated that a stay until Friday 24June 2011 would be sufficient for that purpose. Although the plaintiff presses for a shorter period. In my view that time - frame is appropriate.

1. The Court orders that Order 6 made on 9 June 2011 be stayed until 4pm on 24 June 2011.