Zelic v Barisic

[2017] NSWSC 909

Supreme Court

New South Wales

Medium Neutral Citation:	Zelic v Barisic [2017] NSWSC 909
Hearing dates:	6 July 2017
Date of orders:	06 July 2017
Decision date:	06 July 2017
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Orders sought granted.
Catchwords:	PROCEDURE – notice of motion – pleadings – request for further particulars – orders sought made
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Commissioner of Fair Trading v Kent Publishing Pty Ltd [2007] NSWSC 591 Sims v Wran (1984) 1 NSWLR 317
Category:	Procedural and other rulings
Parties:	Marijan Zelic (Plaintiff) Ivanka Barisic (First Defendant) Ivan Barisic (Second Defendant)
Representation:	Counsel: Mr PJ Trout (Plaintiff) Mr Mitchell (Defendants)   Solicitors: Solon Lawyers (Plaintiff) Sterling Legal (Defendants)
File Number(s):	2017/63871
Publication restriction:	None

EX TEMPORE Judgment

1. HER HONOUR: On 5 May, by consent, I ordered Mr and Mrs Barisic to provide a written response to the request for particulars of 2 May. On 11 May their solicitor advised that the request was one for evidence and not particulars, and that they proposed to respond to it by way of service of affidavits, inviting a further request then “for any particulars of which you are unclear”. One of those affidavits has now been filed. That's an affidavit sworn by Ms Barisic on 4 July 2017. Presumably more will be coming.

2. The proceedings concern a claim for possession of real property at Botany, owned by Mr Zelic, which he claims Mr And Mrs Barisic, his son-in-law and daughter, refuse to vacate. By their defence and cross-claim Mr and Mrs Barisic contend that it was agreed that the property would be theirs, if they repaired, renovated and improved the property, which they have done and in the result, they claim to have an equitable interest in it.

3. Particulars are sought, including as to the claimed agreement for repairs, renovations and improvements. Some of that information, it appears, has been provided in the affidavit.

4. Obviously enough, what is sought is necessary to be provided because neither the defence nor the cross-claim are pleaded in compliance with the requirements of the Uniform Civil Procedure Rules 2005 (NSW). Rule 15.1, for example, requires that pleadings must give such particulars of any claimed defence or other matter pleaded by the parties as are necessary to enable the opposite party to identify the case that the pleadings requires him or her to meet. Rule 14.7 provides that the pleadings must contain a summary of the material facts on which the parties rely, and not the evidence by which those facts are to be proved rule. Rule 14.14 requires that the pleadings must plead specifically any matter that if not pleaded specifically may take the opposite party by surprise. Rule 14.9 requires that the effects of documents or spoken words referred to in the pleadings must, so far as material, be stated.

5. Those obligations have not been complied with and hence the pursuit of the particulars sought.

6. Mr Zelic now seeks further orders as to the provision of the particulars, as well as other steps still necessary to be taken to prepare the matter for hearing. He relies on what was discussed by Price J, as he then was, in Commission ofFair Trading v Kent Publishing Pty Ltd [2007] NSWSC 591 to submit that particulars should be provided. There Price J observed at [4] – [5]:

“4    As was observed by Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 321 the fundamental principle in relation to particulars is that a party must be made aware of the nature of the case he is called upon to meet. One of the objects of particulars is to make the party’s case plain so that each side may know what are the issues of fact to be investigated at the hearing.

5    Although extensive affidavit material has been served, it is not a sufficient answer to the defendants’ request for further particulars to make a general reference to the affidavits. The defendants are entitled to be adequately apprised of what the plaintiff alleges are the facts relevant to each of the allegations. In Sims Hunt J said (at 321):

“It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet.”

7. Mr and Mrs Barisic, in resisting the order, contend that sufficient particulars have been provided by way of Mrs Barisic's affidavit, relying on what was observed by Hunt J in Sims v Wran (1984) 1 NSWLR 317 at 321:

“There is often a fine line between giving particulars of the case which a

party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it.”

8. Notwithstanding that what is claimed is an equitable interest in the property, I am satisfied that Mr Zelic is entitled to the particulars which the Rules require him to be given, as to Mr and Mrs Barisic's case. In due course, they will have the opportunity to lead evidence which they contend proves that they have come to have an equitable interest in the property, which defeats Mr Zelic's right to possession as the registered owner. At this point, however, the case having been pleaded in the way I have discussed, he is entitled to particulars, so that he can understand the case which he has to meet.

9. It is not sufficient that Mr Zelic be told that in due course affidavit evidence will be served upon him, which will provide answers to these particulars. Even yet it is only the affidavit of Mrs Barisic which has been served. What has not been identified in that affidavit is what is said to be the material facts upon which Mr and Mrs Barisic's case depends. That is what Mr Zelic is entitled to be told directly.

10. In the result the orders sought must be made.

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Decision last updated: 07 July 2017