NAMUL PTY LIMITED ACN 149528914 v MILOVAN STANKOVIC [2013] NSWSC 58

Supreme Court New South Wales

Medium Neutral Citation: NAMUL PTY LIMITED ACN 149528914 v MILOVAN STANKOVIC [2013] NSWSC 58 Hearing dates: 06.02.2013 Decision date: 06 February 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Injunction granted against the defendant confirmed. Ancillary orders provided for service discharged. Costs reserved. Catchwords: PROCEDURE - judgments and orders - amending, varying and setting aside - ex parte injunction granted to restrain defendant from entering upon land in dispute with ancillary orders providing for service - defendant entered upon that land in dispute - defendant did not appear before the court, injunction extended with ancillary orders providing for service - defendant appeared before the court and sought that injunction be set aside - injunction confirmed - ancillary orders providing for service set aside. Legislation Cited: - Cases Cited: - Texts Cited: - Category: Interlocutory applications Parties: Namul Pty Limited (P) Milovan Stankovic (D) Representation: C Alexander (P) Sparke Helmore Solicitors (P) File Number(s): 2013/00034311

Judgment - EX TEMPORE 1The proceedings presently before the Court (on the afternoon of 6 February 2013) were commenced on 4 February 2013 by the filing of a summons by the present registered proprietor of land known as xxxxx xxxxxxxxxxx xxxx, Kellyville. 2On 4 February 2013 I granted an ex parte injunction restraining the defendant from entering upon that land. That injunction was expressed to operate until further order. 3The proceedings were, on 4 February 2013, adjourned to this morning (6 February 2013) with a view to the future conduct of the proceedings being assessed. 4The defendant, who presently appears before the Court in person with a lay friend and adviser, Mr John Wilson, did not appear before the Court this morning. In recording that fact I intend no criticism of the defendant. 5This morning, in the absence of the defendant, an order was made that the summons be adjourned to 13 February 2013 at 10 am before the duty judge for hearing or directions, as the duty judge may determine. Ancillary orders were made this morning for service of the Court's orders of this morning on the defendant and for the lodgment of proof of service of documentation relating to both today and the proceedings on 4 February 2013 on the defendant. 6I have been informed by the plaintiff that the defendant entered upon the land in dispute on the evening of 4 February 2013 and was arrested by the police. The defendant has confirmed that that occurred. He says that charges were laid against him by the police, but he was released on unconditional bail pending the determination of those charges. 7For present purposes there is no need for me to enter upon any further consideration of any charges pending against the defendant or events that evidently gave rise to those charges. The defendant denies that he was served with a copy of the injunction prior to going onto the disputed land on 4 February. That denial can remain as an unanswered question for present purposes. 8Upon the defendant's attendance before me this afternoon, counsel for the plaintiff, Mr Alexander, likewise attended before the Court. That has allowed re-consideration of the appropriate interlocutory orders to be made in the present circumstances. 9The defendant informs the Court that he seeks to assert a right of ownership (which I interpret to be a right to beneficial ownership) over that part of the land depicted in Deposited Plan 1169214 that was formerly lot B in file plan 77959. 10There is no dispute, I am informed by the defendant, that the plaintiff is and was at all material times entitled to that part of the land depicted in Deposited Plan 1169214 that was formerly lot A in file plan 77959. 11Thus, the subject of the dispute in these proceedings, ultimately, appears to be the beneficial ownership of the land that was formerly lot B in file plan 79959. 12The plaintiff apparently became the registered proprietor of the disputed land (Lot B in file plan 79959) by acquiring title to it from a trustee in bankruptcy purporting to represent the bankrupt estate of the defendant. 13The defendant has apparently pending in the Federal Court of Australia proceedings (numbered MSD1571 of 2012) designed to challenge the sequestration order that was made by Federal Magistrate Raphael on 12 May 2009, consequentially upon which a trustee was appointed to the defendant's estate. Those proceedings are, I gather, listed for directions on 8 March 2013. 14At the moment, as it appears to me, the plaintiff in the proceedings in this Court is not a party to any claims for relief that may be being made by the defendant (in these proceedings) in the Federal Court. 15If there is to be any resolution of the dispute between the plaintiff and the defendant as to the beneficial ownership of lot B in file plan 79959 it will be necessary for there to be some re-constitution of the Federal Court proceedings or a cross-claim filed by the defendant in these proceedings. 16At all events, it seems to me that the injunction granted against the defendant on 4 February 2013 must stand until at least the proceedings come back before the duty judge on 13 February 2013, notwithstanding any inconvenience that that may cause to the defendant in terms of what he describes as his living arrangements. 17I propose to do nothing more of substance this afternoon than to confirm that the summons in these proceedings stands adjourned to the list of the duty judge at 10 am on 13 February 2013, and to confirm that liberty to apply on 24 hours' notice is reserved. 18Having regard to the defendant's appearance before the Court this afternoon, I formally set aside the second of the orders made this morning providing for service of this morning's order on the defendant, and I formally set aside order 3 of those orders as well relating to proof of service. 19If the plaintiff at any stage seeks to agitate a question of contempt arising from the defendant's entry on the disputed land on 4 February 2013, it will be incumbent upon it to prove that the defendant was served with notice of the injunction in a manner that was in all respects both formally correct and timely. In the absence of any application in the Court's contempt jurisdiction, I am disinclined to delve into any dispute that may arise out of the events of 4 February 2013. 20I am not in a position to provide legal advice to the defendant. Nor am I in a position to provide him with advice as to his social circumstances, which advice he has invited me to tender. The most I can do in this case is to invite him to contact officers of the Legal Aid Commission New South Wales who may be able to provide direction to him both as to the availability of legal services and the availability of social services that relate to his circumstances. 21I reserve all questions of costs arising out of this afternoon's appearance by both parties.