Vlado Naumovski v Robert Ugrinovski - [2017] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0163

VLADO NAUMOVSKI	Applicant
V
ROBERT UGRINOVSKI	Respondent

---

JUDGES:	WHELAN, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 July 2017
DATE OF JUDGMENT:	9 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 200
JUDGMENT APPEALED FROM:	[2016] VSC 555 (Almond J)

---

CONTRACT – Heads of agreement settling proceedings – Special referee appointed – Special referee report on implementation of heads of agreement – Orders made for adoption of report in part – Applicant sought leave to appeal on basis trial judge misconstrued heads of agreement – Leave to appeal refused.

APPLICATION FOR LEAVE TO APPEAL – matters not raised before judge below – complaints as to reasons which do not affect orders.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Gray QC with Mr D Colman	Frenkel Partners
For the Respondent	Mr C Caleo QC with Mr N Evans	SBA Law

WHELAN JA
BEACH JA
McLEISH JA:

The applicant, Vlado Naumovski, and the respondent, Robert Ugrinovski conducted a property investment and property development business together utilising a variety of companies, partnerships and trusts. In 2014 they issued proceedings against each other alleging, amongst other things, that the affairs of the companies were being conducted contrary to the interests of the members.

By a document entitled ‘Binding Heads of Agreement’ dated 13 June 2015 signed by Naumovski and Ugrinovski the proceedings they had issued were settled. The agreement, which we will refer to as the ‘Heads of Agreement’, provided for the disentanglement of their joint affairs and the allocation of assets and liabilities to Ugrinovski and/or his related entities on the one hand and Naumovski and/or his related entities on the other.

The Heads of Agreement provided for the appointment by the Court of an independent referee should the steps necessary to implement the agreed disentanglement and allocation not have occurred by a specified date. The Heads of Agreement also provided for the making of consent orders which replicated the key terms of the agreement and which also provided for the appointment of an independent referee if those orders were not implemented by the specified date. Those orders were made by consent on 24 July 2015.

By an order made 12 October 2015 Mr Leigh Baring, a partner in the solicitors firm, Maddocks, was appointed as a special referee. The appointment was made under Order 50 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’).

After hearing submissions from the parties Mr Baring produced a report dated 28 October 2015 setting out the steps which were to be undertaken in order to implement the Heads of Agreement. Among the steps which he required be undertaken were steps concerning inter-company loans. In substance, Mr Baring required that the inter-company loans be set off or repaid at settlement, and that Naumovski and/or his related entities and Ugrinovski and/or his related entities provide sufficient funds to enable the relevant debtor entities to repay the inter-company loans in…

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.

Keep reading for free

Create a free CaseChat account to read Vlado Naumovski v Robert Ugrinovski and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSCA 200
Decision Date: 9 August 2017

CaseChat Overview and Summary

In the matter of Vlado Naumovski v Robert Ugrinovski, the dispute before the court centred around the interpretation and implementation of a heads of agreement which had been agreed upon to settle the proceedings between the parties. The case was heard in the Supreme Court of New South Wales. The applicant, Vlado Naumovski, sought leave to appeal against the decision of the trial judge, who had ordered the adoption of a special referee's report in part. The applicant contended that the trial judge had misconstrued the terms of the heads of agreement.

The court was tasked with determining whether the applicant's grounds for appeal were sufficient to warrant leave to be granted. The applicant argued that the trial judge had misunderstood the heads of agreement and that this error affected the orders made. The respondent, Robert Ugrinovski, opposed the application for leave to appeal, asserting that the applicant had not raised the specific grounds for appeal before the trial judge and that any complaints about the reasons given did not impact the orders made. The court needed to assess whether the applicant's grounds for appeal, which were not previously raised, could provide a basis for an appeal and whether the alleged errors in the reasons for judgment warranted reconsideration.

The court considered that the applicant's grounds for appeal were matters that could have been raised before the trial judge. Given that these issues were not brought to the trial judge's attention, the court found that they were not suitable grounds for an appeal. Furthermore, the court held that any complaints about the reasons for judgment did not affect the orders made, and thus, the appeal was unlikely to succeed. Consequently, the court refused the applicant's application for leave to appeal. The court's decision emphasised the importance of raising all relevant grounds for appeal before the trial judge and ensuring that any complaints about reasons for judgment directly impact the outcome of the case.

Orders