Stekovic v Radovanovic (No 2)

On 29 November 2023, I determined these proceedings in favour of the plaintiffs, Milivoj and Jovanka Stekovic, against the defendant, Goran Radovanovic: Stekovic v Radovanovic [2023] NSWSC 1471. These reasons assume a familiarity with the facts and issues raised in Stekovic.

I determined that Milivoj and Jovanka are entitled to a declaration that an immediately binding settlement agreement arose between them on 3 June 2022 with the acceptance of the terms of the counter offer made on 2 June 2022: Stekovic at [64]. In Stekovic at [65] I stated:

The parties have been unable to reach any agreement on the orders to be made reflecting my reasons in Stekovic. I have received submissions from each of them, together with the proposed form of orders that they each propound.

Having considered all of the matters raised by the parties in their respective submissions, set out below are the orders I propose to make, together with my reasons for making them.

Milivoj and Jovanka propose a declaration in the following terms:

Goran proposes a declaration in the following terms:

In my view, the form of declaration that should be made is one which reflects the fact that the agreement was immediately binding and enforceable and arose by virtue of the particular documents which conveyed the offer and the acceptance of it. For those reasons, the form of declaration I will make is in the following form:

Milivoj and Jovanka propose a set of orders they contend provide the specific performance of the agreement which is the subject of the declaration. These are:

Goran contends that there should be no such elaborate orders, instead proposing a simple order concerning a direction to pay, as follows:

In my view, the elaborate set of orders sought by Milivoj and Jovanka are not necessary in this case. There is an immediately binding and enforceable agreement which is the subject of the declaration. Fashioning orders requiring Goran to execute a proposed Deed of Settlement and Release is unnecessary and will no doubt lead to further disputation about the particular provisions contained in it. I think that a simple approach should be taken.

The order which will give effect to the declaration is one in terms of paragraph 1 in the offer made in the letter of 2 June 2023 from North Herring to Chamberlains which stated:

An order that requires Goran to give that authority to Baker Deane & Nutt is the step required to specifically perform the agreement. It is not necessary for Milivoj and Jovanka to give that authority as the amount is being held by Baker Deane & Nutt on trust at the direction of Goran.

I am not, however, persuaded that I should make any orders which deal with the balance of the moneys left in the trust account of Baker Deane & Nutt after the payment of $225,000 is made to Milivoj and Jovanka. The claims of Goran or any other party to that balance were not before me for adjudication.

I consider that the form of order I should make is as follows:

The cross-summons filed 13 June 2023 by Goran sought the following orders:

Milivoj and Jovanka propose an order in relation to the disposal of the cross-summons in the following form:

Goran proposes an order in relation to the disposal of the cross-summons in the following form:

In light of the findings I made in Stekovic in relation to the summons, none of the orders sought in the cross-summons could possibly be made. There has been an adjudication on the issues raised by the cross-summons, with Goran failing on all of those issues. For these reasons, I propose to order the following:

Milivoj and Jovanka seek interest on the amount of $225,000 that Goran must pay. They seek an order in the following terms:

Section 100(1) of the Civil Procedure Act 2005 (NSW) (CPA) states:

Goran says that the proceedings were not “for the recovery of money including any debt or damages or the value of any goods” but were for a declaration and specific performance. Milivoj and Jovanka rely on the reasoning of the High Court in Bloch v Bloch (1981) 180 CLR 390, Wilson J (with whom Gibbs CJ, Murphy, Aickin and Brennan JJ agreed) at 398 stating:

In my opinion, s 100(1) needs to be interpreted in a substantive and not formulistic way. In the proceedings, Milivoj and Jovanka were seeking to recover the money in the amount of $225,000 that Goran was obliged to pay them under the immediately binding agreement that was reached on 3 June 2022. In my opinion, these are proceedings for the recovery of money within s 100(1) of the CPA and as a result Milivoj and Jovanka are entitled to an award of interest.

Section 101(1)-(3) of the CPA is in the following terms:

I do not think that I need to make any order about post-judgment interest of the sort contained in sub-paragraph (b) by Milivoj and Jovanka in the present case as s 101 of the CPA will apply in accordance with its terms until the full amount of the judgment is paid.

As a result, the order I propose to make with respect to the payment of interest is:

Milivoj and Jovanka propose an order for costs in the following form:

Goran proposes an order for costs in the following form:

For the reasons that I have given above, it is appropriate for the cross-summons to be dismissed. The exercise of my discretion with respect to costs pursuant to s 98(1)(b) of the CPA in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. Milivoj and Jovanka have achieved comprehensive success in the proceedings, both in relation to the summons and the cross-summons. For that reason, they are entitled to their costs of the whole of the proceedings, not just limited to the summons. For these reasons, I propose to make the following order:

Goran seeks a stay of the orders so that he may file an appeal and then, once the appeal is on foot, seek a further stay in the appeal proceedings. Goran submits that a stay is warranted in this case because once the trust monies are dispersed by Baker Deane & Nutt there can be no certainty of recovery by either party in the event that the appeal is successful. It is contended that I should preserve the status quo pending the outcome of the appeal. Accordingly, Goran proposes the following order:

Milivoj and Jovanka oppose the granting of a stay, submitting that no basis has been advanced to justify a stay of the orders and if that basis is an appeal, the prospects of such appeal must be weak at best, with no draft appeal having been provided.

The relevant principles are conveniently described in Tyro Payments Ltd v Kounta Pty Ltd (No 2) [2023] NSWSC 1402, Rees J at [5]-[8] as follows:

The principal basis put forward by Goran is an intention to appeal. But that of itself is not enough. In Roberts v Goodwin Street Developments Pty Ltd [2022] NSWCA 103, Gleeson JA at [10] said:

In the present case, Goran has not endeavoured to mount anything like the task required of him to justify a stay of the orders to be made by me. For example, there is no evidence of the financial circumstances of either Milivoj or Jovanka on which to base any finding that there would likely be no recovery from them if an appeal was successful. I refuse to order a stay.

The orders I make are: