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[2016] NSWSC 1679

Davidovic v Vesuvius Australia Pty Ltd (No 2)

Notice of motion filed on 25 October 2016 by Damjan Zugic dismissed with costs

Catchwords

PRACTICE AND PROCEDURE – proceedings stayed by earlier order pending payment to defendant of outstanding costs – application by alleged assignee of plaintiff’s cause of action to be substituted as plaintiff without first paying those costs – whether such application competent while stay subsists

Cases cited

  • Davidovic v Vesuvius Australia Pty Ltd[2014] NSWSC 1066
  • Minister of Foreign Affairs Trade and Industry v Vehicles and Supplies Ltd [1991] 1 WLR 550

Legislation cited

  • Bankruptcy Act 1966 (Cth)
  • Civil Procedure Act 2005 (NSW)

Judgment

  1. [1]

    The background to these proceedings is set out in the judgment of Darke J of 7 August 2014: Davidovic v Vesuvius Australia Pty Ltd [2014] NSWSC 1066.

  2. [2]

    These reasons assume familiarity with that judgment.

  3. [3]

    His Honour made the following orders (“the Orders”):

  4. [4]

    Thus, his Honour granted conditional leave to the plaintiff to amend the statement of claim and ordered that the proceedings be stayed until the $95,728.75 (“the Sum”) was paid.

  5. [5]

    The condition upon which leave was granted was not met. The Sum has not been paid. No application has been made to vary the Orders. The proceedings thus remain stayed.

  6. [6]

    The plaintiff is now bankrupt and has, evidently, left Australia permanently.

  7. [7]

    In December 2015, the defendant caused there to be served on the plaintiff’s trustee in bankruptcy a notice under s 60 of the Bankruptcy Act 1966 (Cth). There was no response to that notice and the official trustee is therefore deemed to have abandoned the proceedings.

  8. [8]

    Nothing occurred in the proceedings after 7 August 2014 until 26 August 2016, when the defendant filed a notice of motion seeking to have the proceedings dismissed.

  9. [9]

    On 27 September 2016, the plaintiff’s grandson, Mr Damjan Zugic, filed a notice of motion seeking an order that he be substituted as plaintiff in these proceedings and seeking leave to file an amended statement of claim in the form attached to the notice of motion. Mr Zugic claims to be an assignee of the cause of action in the proceedings.

  10. [10]

    That application came on before Darke J as Duty Judge on 11 October 2016.

  11. [11]

    His Honour ordered that:

    1. (1)

      Mr Zugic’s notice of motion of 27 September 2016 be struck out and removed from the court file; and

    2. (2)

      Mr Zugic be granted leave to file a notice of motion “for the uplifting of the stay ordered on 7 August 2014”.

  12. [12]

    I have been informed that his Honour did not give reasons for making those orders but that his Honour ordered that Mr Zugic’s notice of motion of 27 September 2016 be struck out because of the existence of the stay the subject of the Orders.

  13. [13]

    On 25 October 2016, Mr Zugic filed a notice of motion seeking the following orders:

  14. [14]

    That notice of motion came on before me today in the Applications List.

  15. [15]

    Argument before me today proceeded upon the basis that prayer one should read:

  16. [16]

    I am prepared to accept that, by making the second order to which I have referred on 11 October 2016, Darke J should be taken to have varied the Orders so far as necessary to enable Mr Zugic to bring a motion to discharge the stay, albeit subject to Mr Zugic actually paying the $95,728.75. In fact, any such variation was not necessary as the effect of the Orders is that if and when the $95,728.75 is paid to the defendant (no matter by whom) the stay is lifted; without the need for any application or further order.

  17. [17]

    Nonetheless, I do not read Darke J’s order as varying the Orders, and uplifting the stay, to enable Mr Zugic to bring an application to be substituted as plaintiff. That is clear from the first order his Honour made on 11 October 2016.

  18. [18]

    To the extent that Mr Zugic’s notice of motion seeks to do so, it is in my opinion misconceived and incompetent.

  19. [19]

    The proceedings are stayed and, unless, Darke J’s order is varied, will remain stayed so long as the $95,728.75 is not paid to the defendant.

  20. [20]

    That means that no steps (including an application to be substituted as plaintiff) can be taken in the proceedings while the stay subsists: that is, unless and until that sum is paid (or the order is varied): see for example Minister of Foreign Affairs Trade and Industry v Vehicles and Supplies Ltd [1991] 1 WLR 550 at 556.

  21. [21]

    No application has been made to vary the Orders. I do not see Mr Zugic’s notice of motion as constituting expressly, or impliedly, such an application.

  22. [22]

    Mr Young, who appeared for Mr Zugic, submitted that:

  23. [23]

    I do not agree.

  24. [24]

    While the stay is in force, Mr Zugic is not entitled to have any application to be substituted as plaintiff determined.

  25. [25]

    If Mr Zugic pays the $95,728.75 (and, I would add, interest on that sum) the stay will be lifted.

  26. [26]

    He can then be substituted as plaintiff.

  27. [27]

    I order that Mr Zugic’s notice of motion of 25 October 2016 be dismissed with costs.

  28. [28]

    In order to give Mr Zugic a short opportunity to consider what steps he wishes to take, I will stand the defendant’s notice of motion of 26 August 2016 over to the Applications List on 2 December 2016.

  29. [29]

    If the stay then remains in place, I will dismiss the proceedings.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.