Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 4] [2009] NSWSC 1478

New South Wales Supreme Court

CITATION : Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 4] [2009] NSWSC 1478

HEARING DATE(S) : 21 December 2009 JURISDICTION : Equity

JUDGMENT OF : Slattery J at 1

EX TEMPORE JUDGMENT DATE : 21 December 2009

DECISION : See paragraph [33] of judgment.

CATCHWORDS : PROCEDURE - plaintiff seeks appointment of trustee for sale of defendants' property - non appearance of defendants - sufficient notice of proceedings given to defendants - proceedings adjourned to give defendants an opportunity to respond due to gravity of orders sought by plaintiff

CATEGORY : Principal judgment

CASES CITED : Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 3] [2009] NSWSC 1373

Plaintiff: Chateau Constructions (Aust) Limited PARTIES : First Defendant: Milla Zepinic Second Defendant: Vito Zepinic

FILE NUMBER(S) : SC 4643/09

COUNSEL : Plaintiff: Mr B Ilkovski Defendants: No Appearance

SOLICITORS : Plaintiff: Toomey Pegg Drevikovsky Lawyers Defendants: No Appearance

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SLATTERY J

MONDAY 21 DECEMBER 2009

4643/09 CHATEAU CONSTRUCTIONS (AUST) LTD v MILLA ZEPINIC & VITO ZEPNIC [NO. 4] JUDGMENT [Ex tempore] 1 HIS HONOUR : These proceedings have come again before me today for hearing on the plaintiff's amended summons. Liberty to amend the summons and bring the matter back today was granted in my orders of 3 December 2009 ( Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 3] [2009] NSWSC 1373). 2 Evidence has been read today in support of the amended summons. I have invited the reading of this evidence so the Court can assess what should next be done in this matter. 3 Chateau moves on its amended summons dated 11 December 2009. In support of that summons Chateau reads affidavits of Andrew Loel of 14 and 21 December 2009, Peter Knox of 10 December 2009, Nicholas Craig Malanos of 11 December 2009 and Donna Ferris of 11 December 2009. 4 On 3 December I made orders for Chateau to serve on the Zepinics my judgment that day, the amended summons and supporting affidavits and Chateau's submissions. Service was directed upon the email address which the defendants, Dr and Mrs Zepinic were using to correspond with the solicitors for Chateau. 5 The affidavit material shows that Chateau has complied with the orders of 3 December 2009 for serving the defendants with this material. Chateau has filed and read substantially all of the evidence that it needs for a hearing on the amended summons. Chateau is in an obvious state of readiness to proceed on the amended summons to gain the relief that it seeks. 6 Chateau, by its counsel, Mr Ilkovski, urges me to make orders in accordance with orders 3 to 9 of the amended summons and in particular orders for the consequential relief appointing a trustee for sale of the property in Turramurra Avenue the subject of the charge and ordering the sale of that property. 7 I have no doubt that Dr and Mrs Zepinic have received the material that I ordered be served upon them. So much is evident from the email correspondence between the solicitors for Chateau and the Zepinics. For this correspondence the Zepinics have used the email address at which they were served under the Court's order of 3 December 2009. A recent email from them (annexure "L" to the affidavit of Mr Andrew Loel of 21 December 2009), sent to Mr Loel on 13 December 2009 at 7.59 pm says: "Dear Mr Loel, thank you for your paper. However, please be advised we have no intention to sell a property! Regards Dr V and M Zepinic."