Zelic v Barisic [2018] NSWSC 1346

Supreme Court New South Wales

Medium Neutral Citation: Zelic v Barisic [2018] NSWSC 1346 Hearing dates: 30 August 2018 Date of orders: 04 September 2018 Decision date: 04 September 2018 Jurisdiction: Common Law Before: Harrison J Decision: (1) Dismiss the plaintiff's application to require the defendants to withdraw their caveat. (2) Dismiss the plaintiff's application to be released from the Harman undertaking. (3) Grant leave to the defendants to file an amended cross-claim in the form annexed to the notice of motion filed on 1 July 2018. (4) Dispense with the requirement that the plaintiff file a defence to the amended cross-claim. (5) Order that the defendants pay the plaintiff's costs of and incidental to the application to amend. Catchwords: LAND LAW – caveats – application by registered proprietor for an order that a caveat be withdrawn – where registered proprietor seeks to refinance a mortgage and raise a further $200,000 to fund the cost of these proceedings – where caveator's interest would be irrevocably diminished if the caveat were to be withdrawn

CIVIL PROCEDURE – Harman undertaking – application by plaintiff to be released from the undertaking – where plaintiff has not demonstrated special circumstances

CIVIL PROCEDURE – pleadings – amendment – late application for amendment – where amendments facilitate the determination of the real questions raised by the proceedings – where no authentic or tangible prejudice to the plaintiff – where concern that the formulation of a defence to the amended cross-claim would detract from the plaintiff's ability to prepare for trial – where concern alleviated by dispensing with the need for the plaintiff to file a defence to the amended cross-claim Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64(2) Real Property Act 1900 (NSW), s 74MA Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24,513; [2006] NSWSC 1465 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85 Pascoe v Turner [1979] 1 WLR 431 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Tadrous v Tadrous [2009] NSWSC 407 Category: Procedural and other rulings Parties: Marijan Zelic (Plaintiff) Ivanka Barisic (First Defendant) Ivan Barisic (Second Defendant) Representation: Counsel: P Trout (Plaintiff) M Condon SC with P Sharp (First and Second Defendant)