Nanevski Developments Pty Ltd v Slaveski [2020] NSWSC 617

Supreme Court New South Wales

Medium Neutral Citation: Nanevski Developments Pty Ltd v Slaveski [2020] NSWSC 617 Hearing dates: 11 May 2020 Date of orders: 22 May 2020 Decision date: 22 May 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: Partnership proceedings (2019/00153341) 1. Pursuant to r 12.6 of the UCPR, grant leave to the defendants to withdraw the admissions made at [11] of their amended defence by the filing of the further amended defence (Further Amended Defence) in the form annexed to the defendants' amended notice of motion filed 14 April 2020. 2. Grant leave to the defendants to file and serve the Further Amended Defence but with amendment to plead specifically the facts, matters and circumstances relied upon for the allegation at [53] of the proposed further amended defence; and direct that a verified copy of the Further Amended Defence be filed and served within seven days. 3. Grant leave to the defendants to file and serve a cross-claim in the form of the cross-claim annexed to the defendants' amended notice of motion filed 14 April 2020, but with amendment to correct typographical or cross-referencing errors and to take into account the reasons insofar as the claims for relief against Mr Tom Nanevski personally are concerned. 4. Order that the defendants pay the plaintiffs' costs thrown away by the amendment to the amended defence. 5. Otherwise order that the costs of the defendants' amended notice of motion filed 14 April 2020 be the defendants' costs in the cause. 6. Order that this proceeding be listed at the same time (for directions and for hearing in due course consecutively) as the following matters (2018/00357790; 2019/00095013; and 2019/00095876). 7. Stand the matter over for directions before me on 26 May 2020 at 8.30am. 8. Refer the matter to court-annexed mediation on a date to be fixed on 26 May 2020. Windows proceeding (2018/00357790) 1. Grant leave to the plaintiff to file and serve the amended statement of claim annexed to the plaintiff's notice of motion filed 3 April 2020. 2. Order pursuant to rule 28.5(c) of the UCPR, that this proceeding be listed at the same time (for directions and for hearing in due course consecutively) as the following matters (2019/00153341; 2019/00095013; and 2019/00095876), 3. Remit to the Registry the application for waiver of the plaintiff's fees for the filing of the plaintiff's notice of motion filed 3 April 2020. 4. Order that the costs of the plaintiff's notice of motion filed 3 April 2020 be the plaintiff's costs in the cause. 5. Stand the matter over for directions before me on 26 May 2020 at 8.30am. 6. Refer the matter to court-annexed mediation on a date to be fixed on 26 May 2020. Steel importation proceeding (2019/00095013) 1. Grant leave to the plaintiff to file and serve the amended statement of claim in the form annexed to the plaintiff's notice of motion filed on 2 April 2020. 2. Order pursuant to rule 28.5(c) of the UCPR, that this proceeding be listed at the same time (for directions and for hearing in due course consecutively) as the following matters (2019/00153341; 2018/00357790; and 2019/00095876), 3. Remit to the Registry the application for waiver of the plaintiff's fees for the filing of the plaintiff's notice of motion filed 2 April 2020. 4. Order that the costs of the plaintiff's notice of motion filed 2 April 2020 be the plaintiff's costs in the cause. 5. Stand the matter over for directions before me on 26 May 2020 at 8.30am. 6. Refer the matter to court-annexed mediation on a date to be fixed on 26 May 2020. Formwork proceeding (2019/00095876) 1. Grant leave to the plaintiff to file and serve the amended statement of claim annexed to the plaintiff's notice of motion filed on 2 April 2020. 2. Order pursuant to rule 28.5(c) of the UCPR, that this proceeding be listed at the same time (for directions and for hearing in due course consecutively) as the following matters (2019/00153341; 2018/00357790; and 2019/00095013). 3. Remit to the Registry the application for waiver of the plaintiff's fees for the filing of the plaintiff's notice of motion filed 2 April 2020. 4. Order that the costs of the plaintiff's notice of motion filed 2 April 2020 be the plaintiff's costs in the cause. 5. Stand the matter over for directions before me on 26 May 2020 at 8.30am. 6. Refer the matter to court-annexed mediation on a date to be fixed on 26 May 2020. Catchwords: CIVIL PROCEDURE — Pleadings — Form and content of pleading — Pleading material facts — Defects —Striking out — Tendency to cause prejudice, embarrassment or delay — Amendment — Late application for amendment Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64 Civil Procedure Act 2010 (Vic) Competition and Consumer Act 2010 (Cth), Sch 2 Conveyancing Act 1919 (NSW), s 66G Home Building Act 1989 (NSW) Protection of the Environment Operations Act 1997 (NSW) Uncollected Goods Act 1995 (NSW), ss 5, 18 Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 12.6, 14.8, 14.9, 17.2-17.5, 28.5 Cases Cited: ACN 074 971 109 (as Trustee for the Argot Unit Trust v The National Mutual Life Association of Australasia Ltd [2010] VSC 186 Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd (1995) 58 FCR 26 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bank of Western Australia Ltd v Coppola [2011] NSWSC 1326 Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279; [1990] HCA 11 Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281 BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 Brand v Monks [2009] NSWSC 1454 Bruce v Odhams Press Limited [1936] 1 KB 697 CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd (2017) 55 VR 62; [2017] VSCA 11 Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94 Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Cropper v Smith (1884) 26 Ch D 700 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423 Ell v Hunter District Water Supply and Sewerage Board (1927) 27 SR (NSW) 437; 44 WN (NSW) 140 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 Essex Securities Pty Ltd v Lunt [2006] WASC 58 Fabrizio v Wickham Hill Investment Pty Ltd [2018] NSWSC 612 For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 108 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Gunns Limited v Marr [2005] VSC 251 H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694; 1 All ER 934 HFPS Pty Limited (Trustee) v Tamaya Resources Limited (In Liq) (No 2) [2016] FCA 446 Hill End Gold Ltd v First Tiffany Resource Corp [2008] NSWSC 866 Horton v Jones (No 2) (1939) 39 SR (NSW) 305 In the matter of Dymocks Book Arcade Pty Limited [2013] NSWSC 298 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 Ingot v Macquarie [2004] NSWSC 1136 Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; (2003) 204 ALR 327 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Kelly v Mina [2014] NSWCA 9 Khouri v National Australia Bank Ltd [2007] NSWSC 987 Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd (2011) 256 FLR 240; [2011] NSWSC 1115 McFadden v Snow (1952) 69 WN (NSW) 8 McGuirk v University of New South Wales [2009] NSWSC 1424 Meckiff v Simpson [1968] VR 62 Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] FCA 1040 Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72 Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66; [2009] FCA 320 Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455; [2000] QCA 292 S1 v The Trustees of Marist Brothers [2016] NSWSC 970 Sergi v Sergi [2019] NSWSC 865 Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278 Sirius Shipping Corporation v The Ship Sunrise [2006] NSWSC 164 SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816 Stafford v Kekatos (No 2) [2008] NSWSC 1044 State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 at 154; [1997] HCA 1 Steiner v Strang [2016] NSWSC 9 Tamaya Resources Limited (in Liq) v Deloitte Touche Tohmatsu (A Firm) [2015] FCA 1098 Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; (2016) 332 ALR 199 Thorp v Holdsworth [1876] 3 Ch D 637 Watiwat v Dixon [2017] NSWSC 360 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Wride v Schulze [2004] FCAFC 216 Young v Tieco International [1995] SASC 5173 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Procedural and other rulings Parties: Proceedings 2019/00153341 Nanevski Developments Pty Ltd (Plaintiff/Cross-defendant/Second Respondent on motion) Ken Slaveski (First Defendant/Cross-claimant/Applicant on motion Biljana Slaveski (Second Defendant/Cross-claimant/Applicant on motion) James Slaveski (Third Defendant/Cross-claimant/Applicant on motion) Mega-Top Cargo Pty Ltd (Fourth Defendant/Cross-claimant/Applicant on motion) Tom Nanevski (First Respondent on motion)