Workcare Management v Gajic Holdings (No. 2) [2010] NSWSC 920

New South Wales Supreme Court

CITATION : Workcare Management v Gajic Holdings (No. 2) [2010] NSWSC 920

HEARING DATE(S) : 23-24 June 2010

JUDGMENT DATE : 30 June 2010

JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Rein J

DECISION : Leave to defendant to re-open its case refused.

CATCHWORDS : PROCEDURE - Supreme Court procedure - New South Wales - application for leave to re-open - where defendant sought leave to re-open its case after principal judgment delivered

CATEGORY : Procedural and other rulings

Australian Securities and Investments Commission v Rich [2006] NSWSC 826 CASES CITED : Sam Management Services (Aust) Pty Ltd v Bank of Western Australia Ltd [2009] NSWSC 702 Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

PARTIES : Workcare Management Pty Limited (plainitff) Gajic Holdings Pty Limited (defendant)

FILE NUMBER(S) : SC 2010/95135

COUNSEL : R W Washington, R Lahood (plainitff) A G Rogers (defendant)

SOLICITORS : Thomas Henry Bray Lawyer (plaintiff) Mitry Lawyers (defendant)

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

Rein J

Date of Hearing: 23-24 June 2010 Date of Judgment: 30 June 2010

2010/95135 Workcare Management Pty Limited v Gajic Holdings Pty Limited (No. 2)

JUDGMENT 1 REIN J: I delivered judgment in this matter on 11 June 2010 and stood the matter over to 18 June to enable orders to be finalised. On 18 June, counsel for the defendant, Mr Rogers, indicated that he could not agree to the orders, as his client wished to apply to re-open its case. I gave the defendant leave to file a Notice of Motion in that connection and stood the matter over until 23 June to enable the motion to be heard. 2 The evidence relied on by the defendant is Mr Gajic's affidavit of 17 June 2010, Mr Jelicic's affidavits of 17 June and 23 June 2010, and Mr Samardic's affidavit of 23 June 2010. The plaintiff relied on the affidavit of Mr Frassetto of 22 June 2010. 3 Mr Jelicic is a director of Aleksander Design Group Pty Ltd ("ADG"). ADG was originally retained by Devcon to provide architecture services (Mr Jelicic's wife is an architect employed by ADG). In February 2009, ADG was engaged by the plaintiff to produce development application plans ("DA plans") and construction certificate plans ("CC plans"). 4 The evidence of the defendant, including the affidavits in reply, was sought to be adduced to establish that the evidence given by Mr Frassetto and Mr Zammitt at the hearing (and in Mr Frassetto's latest affidavit), that is, that the DA plans lodged in May 2009 and approved by the Council were sufficiently detailed to support a construction certificate and that it had been WMC's intention to rely on the DA plans, was false. Mr Samardic also deposes to the fact that the work that he saw being carried out on level 1 was not consistent with the DA plans. The defendant also tendered on the application the development application lodged by Mr Frassetto on behalf of WMC.