Stankovic v Stankovic [2008] NSWSC 425

New South Wales Supreme Court

CITATION : Stankovic v Stankovic [2008] NSWSC 425

HEARING DATE(S) : 28 March 2008 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 28 March 2008

DECISION : Entitlement issue not to be determined as a separate question

CATCHWORDS : PROCEDURE – separate determination of questions – taking of accounts – order for accounts did not determine entitlements of parties – where inquiry beset by procedural defaults and late service of evidence – where defendant serves belatedly apparently compelling evidence on entitlement issue – where adjournment inevitable – whether entitlement issue should be determined as a separate question.

CATEGORY : Procedural and other rulings

Milovan Stankovic (plaintiff) David Stankovic (first defendant) PARTIES : Milka Stankovic (second defendant) Sasha Stankovic (third defendant) Arthur Samyia (fourth defendant) Jennifer Samyia (fifth defendant)

FILE NUMBER(S) : SC 5100/05

COUNSEL : Ms N Obrart (plaintiff) David Stankovic (first defendant) (in person)

SOLICITORS : Kent Attorneys (plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

BRERETON J

Friday 28 March 2008

5100/05 Milovan Stankovic v David Stankovic & 4 Ors JUDGMENT (on proposal to determine separate question; see transcript p 207) 1 HIS HONOUR: I have been giving consideration to whether I should make an order that what for convenience has been called the entitlement issue - namely, whether the plaintiff Milovan Stankovic or the first defendant David Stankovic, or both of them, were entitled to the net proceeds of sale of 2 Tea Tree Crescent – be determined separately and before the other issues that arise on the inquiry, which essentially are issues as to the use to which individual payments from the Suncorp line of credit were applied, and in particular whether they were for the benefit of the project, or of one or other of the parties personally. The difficulty arises because when, on 17 October 2005, an order was made by consent that an account be taken, it was simply expressed as an order that an account be taken between the plaintiff and the first defendant in respect of the disposition of all moneys obtained for the purpose of the development of 2 Tea Tree Way and the disposition of the proceeds of sale of that property, without any determination having been made, consensually or otherwise, as to the respective entitlements of the parties in respect of that development and its proceeds. As a result, it is necessary, on this inquiry, to determine those entitlements. 2 As has been recorded in earlier judgments delivered in the course of management of this case, it has had a very sorry procedural history since 17 October 2005, with the inquiry coming on for hearing before me some two and a half years later, having previously been set down and vacated, and many directions having been made but not obeyed. For that reason, and in the hope that the costs to the parties could be reduced and that it will facilitate the ultimate attainment of justice, I have, despite non-compliance with various directions and despite the late production of evidentiary material on both sides, received that material. However, despite this less than rigorous approach to the reception of late evidence, I nonetheless need to bear in mind that a party should not be deprived of the opportunity to investigate and to test evidence adduced against it. 3 As I have pointed out in the course of argument, there is, at first sight, reason to think that further investigation of MIO5, which lists the payments Mr David Stankovic claims to have made from the Craftwork Carpentry account, may not lead very far, as the invoices which he has tendered, now DX18, tend, so far as they go, to corroborate the list. But, once again, one has to bear in mind that sometimes what seems prima facie very clear turns out on closer examination to be not so clear at all, and even to be incorrect. 4 The plaintiff insists that he should be afforded an opportunity to investigate and to test this evidence, which was produced very late by the defendant, for which really the defendant has to bear responsibility. I think the plaintiff must be permitted the opportunity which he seeks of investigating and, if he wishes, testing that material, notwithstanding that it will apparently add substantially to the costs of the proceedings. 5 There is much to be said for making an order for determination of the entitlement issue as a preliminary question; in particular, that ordinarily that is what would have happened in any event, before accounts were taken, and that once that is done, at least the parties will know what account has to be taken and what the entitlements are. But, as it seems to me that, after spending three days now on this hearing, the case will not complete today, and as it seems that counsel will not be available early next week when the court might be able to conclude the matter, there will have to be an adjournment in any event, the utility of deciding the separate question is somewhat reduced, and although I think it would still have much to commend it, those attractions are insufficient to deny the plaintiff the opportunity it seeks to meet the late evidence. 6 With not a little regret, therefore, I will not order that the entitlement issue be determined as a separate question. **********