J P Morgan Trust Australia Limited v Kapetanovic [2007] NSWSC 1423

New South Wales Supreme Court

CITATION : J P Morgan Trust Australia Limited v Kapetanovic [2007] NSWSC 1423

HEARING DATE(S) : 5 and 6 December 2007

JUDGMENT DATE : 7 December 2007

JUDGMENT OF : Harrison J

DECISION : Lupco Angelovski to pay the plaintiff's costs of and incidental to the subpoena issued on 28 September 2007 on and from 9 October 2007.

CATCHWORDS : CIVIL PROCEURE – subpoena for production of documents issued to defendants' former solicitor - failure by solicitor to comply with terms of subpoena – attempts to obtain documents unsuccessful - application for issue of arrest warrant for failure to comply – warrant issued – evidence given by solicitor for failure to comply – unsatisfactory explanation – costs awarded to plaintiff from date of service of subpoena

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

J P Morgan Trust Australia Limited (Plaintiff) PARTIES : Lena Kapetanovic (First Defendant) Elvis Stefanoski (Second Defendant)

FILE NUMBER(S) : SC 15675 of 2006

COUNSEL : A C Casselden (Plaintiff)

SOLICITORS : Gadens Lawyers (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST

HARRISON J

7 December 2007

15675 of 2006 J P Morgan Trust Australia Limited v Lena Kapetanovic & Anor

JUDGMENT 1 HARRISON J: These proceedings came before me in the duty judge list on the application by the plaintiff for the issue of a warrant for the arrest of Lupco Angelovski. I issued that warrant on Wednesday 5 December 2007 in circumstances to which I will shortly refer.

Background 2 By its statement of claim filed 20 November 2006 the plaintiff sues to recover slightly in excess of $570,000 together with an order for possession of two properties against the security of which that money was advanced. A defence filed on 13 June 2007 by the first defendant alleges that she was under a special disability or a situation of disadvantage which would have been sufficiently evident to the plaintiff to make its conduct unconscionable in the circumstances in which the mortgages were procured. 3 By notice of motion filed 28 November 2007 the plaintiff moved the Court for judgment pursuant to rule 13.1 UCPR or in the alternative that the defendants' respective defences be struck out pursuant to rule 14.28. Judgment against the defendants pursuant to rule 16.8 was sought in the further alternative. That matter was listed to be heard yesterday. 4 Lupco Angelovski is a solicitor trading as B J Murphy, Angelovski & Associates. It is said that Mr Angelovski is the solicitor who acted on behalf of the defendants in the mortgage transaction which is the subject of the present proceedings. 5 On 28 September 2007 a subpoena directed to Mr Angelovski was issued out of the registry of the Court. That subpoena was in the usual form and sought in the Schedule the production of documents described as follows: "1. All documents or copies of all documents in relation to Lena Kapetanovic and Elvis Stefanoski, including but not limited to: