Orlovicic v Todorovic [2007] NSWSC 798

New South Wales Supreme Court

CITATION : Orlovicic v Todorovic [2007] NSWSC 798 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 13/07/07 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 13 July 2007

DECISION : Writ of possession granted. Mesne profits refused. Costs order on ordinary basis.

CATCHWORDS : PROCEDURE - Miscellanous Procedural Matters - Amendments - Order for possession - Mesne profits - Indemnity costs - No principles involved

PARTIES : Mario Orlovcic - Plaintiff Mico Todorovic - Defendant

FILE NUMBER(S) : SC 1973/06

COUNSEL : Mr L Judd - Plaintiff

SOLICITORS : Kydon Segal Lawyers - Plaintiff

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

FRIDAY 13 JULY 2007

1973/06 MARIO ORLOVICIC V MICO TODOROVIC EX TEMPORE JUDGMENT 1 The first matter before the court is a notice of motion by the plaintiff, Mario Orlovcic, seeking leave to file an amended statement of claim. That amended statement of claim varies the description of the land, an order for possession of which is sought. I am satisfied that that document was served and came to the attention of the defendant, Mico Todorovic, who does not appear in these proceedings. 2 The affidavits of Mr Wright, which I gave leave to read, indicate that the amended statement of claim was left at premises occupied by Mr Todorovic. In an affidavit by the solicitor for Mr Orlovcic, a conversation with Mr Todorovic is set out in which Mr Todorovic said to the solicitor he had received the documents left at the property. Those documents included the notice of motion with the appended form in which the statement of claim was to be amended. 3 It is now sought, however, to further amend the statement of claim to not only include the variations in the description of the property to which I have referred, but also to include a new claim in the following terms: "Claim for mesne profits for the property referred to in order 1 representing the amount of rent which would otherwise have been payable at $120 per week from the date of service of the Statement of Claim." 4 In the course of the conversation between Mr Orlovcic's solicitor and Mr Todorovic, the solicitor said to Mr Todorovic: "I am instructed that my client wishes to amend its claim against you to include a claim for unpaid rent or mesne profits. We will seek leave to file an amended claim tomorrow. It is in your interests that you appear in Court and defend that claim."