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Zelic v Barisic

Zelic v Barisic

Case [2018] NSWSC 1346 4 September 2018

Discovery & Disclosure

Abuse of Process

Res Judicata

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Zelic v Barisic [2018] NSWSC 1346
Hearing dates: 30 August 2018
Date of orders: 04 September 2018
Decision date: 04 September 2018
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1) Dismiss the plaintiff’s application to require the defendants to withdraw their caveat.
(2) Dismiss the plaintiff’s application to be released from the Harman undertaking.
(3) Grant leave to the defendants to file an amended cross-claim in the form annexed to the notice of motion filed on 1 July 2018.
(4) Dispense with the requirement that the plaintiff file a defence to the amended cross-claim.
(5) Order that the defendants pay the plaintiff's costs of and incidental to the application to amend.

Catchwords:
LAND LAW – caveats – application by registered proprietor for an order that a caveat be withdrawn – where registered proprietor seeks to refinance a mortgage and raise a further $200,000 to fund the cost of these proceedings – where caveator’s interest would be irrevocably diminished if the caveat were to be withdrawn

CIVIL PROCEDURE – Harman undertaking – application by plaintiff to be released from the undertaking – where plaintiff has not demonstrated special circumstances
CIVIL PROCEDURE – pleadings – amendment – late application for amendment – where amendments facilitate the determination of the real questions raised by the proceedings – where no authentic or tangible prejudice to the plaintiff – where concern that the formulation of a defence to the amended cross-claim would detract from the plaintiff’s ability to prepare for trial – where concern alleviated by dispensing with the need for the plaintiff to file a defence to the amended cross-claim
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64(2)
Real Property Act 1900 (NSW), s 74MA
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24,513; [2006] NSWSC 1465
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240
Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85
Pascoe v Turner [1979] 1 WLR 431
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Tadrous v Tadrous [2009] NSWSC 407
Category: Procedural and other rulings
Parties: Marijan Zelic (Plaintiff)
Ivanka Barisic (First Defendant)
Ivan Barisic (Second Defendant)
Representation:
Counsel:
P Trout (Plaintiff)
M Condon SC with P Sharp (First and Second Defendant)
Solicitors:
Solon Lawyers (Plaintiff)
Sterling Legal (First and Second Defendant)

File Number(s): 2017/63871
Publication restriction: Nil

Judgment

HIS HONOUR: The plaintiff is the registered proprietor of a residential property in Botany. He bought it in 1971 with his wife. In 1994, the plaintiff became the sole owner. Since about 1996, the defendants, who are his daughter and son-in-law respectively, have lived there. They remain in occupation. The…

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 Zelic v Barisic

Details

AGLC: Zelic v Barisic [2018] NSWSC 1346
Case: [2018] NSWSC 1346
Decision Date: 04 September 2018

CaseChat Overview and Summary

In Zelic v Barisic, the Federal Court of Australia addressed several issues pertaining to land law and civil procedure. The case involved a dispute between Zelic, the registered proprietor of a property, and Barisic, the caveator. Zelic sought an order for the withdrawal of the caveat lodged by Barisic, as Zelic intended to refinance a mortgage and raise additional funds to cover the costs of the proceedings. The withdrawal of the caveat would result in an irrevocable diminution of Barisic’s interest in the property.

The primary legal issues the court needed to resolve were whether Zelic could be granted an order for the withdrawal of the caveat and whether Barisic's interest would be irreparably harmed by such an order. Additionally, the court examined whether Zelic was entitled to be released from a Harman undertaking and whether a late application for the amendment of pleadings should be allowed. The court determined that Zelic had not demonstrated special circumstances warranting release from the Harman undertaking and that the late application for amendment should be granted because the amendments facilitated the determination of the real questions in the proceedings without causing prejudice to the plaintiff.

The court reasoned that the withdrawal of the caveat would indeed cause Barisic irreparable harm, as it would significantly diminish Barisic's interest in the property. Consequently, the court dismissed Zelic's application for an order to withdraw the caveat. Furthermore, the court found that Zelic had not shown special circumstances to warrant release from the Harman undertaking, thereby upholding the plaintiff's obligations under the undertaking. Finally, the court allowed the late application for the amendment of pleadings, noting that the amendments would aid in the resolution of the case without causing undue prejudice to the plaintiff.

No specific final orders were mentioned in the case summary.

Orders