Macura v Sarasevic [2019] NSWSC 1409

Supreme Court New South Wales

Medium Neutral Citation: Macura v Sarasevic [2019] NSWSC 1409 Hearing dates: 23, 24, 30 April and 3, 10 May 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Declare that the parties have reached a settlement agreement as set out in the Short Minutes of Orders signed by the parties on 20 March 2018 (annexure A to the Notice of Motion filed by the defendants on 16 May 2018), and formalised in the Short Minutes of Orders signed by the parties' solicitors on 23 March 2018 (annexure B to the Notice of Motion filed by the defendants on 16 May 2018) 2. Order that: a. the plaintiff receive by way of provision out of the estate of the late Milorad Adzic, a lump sum of $100,000; b. no interest be paid on the lump sum if paid within 28 days of the date of these orders; otherwise, interest is to be paid on any unpaid part of the lump sum, calculated at the rate prescribed for the payment of interest on unpaid legacies under s 84A(3) of the Probate and Administration Act 1898 (NSW), until paid in full; c. the settlement sum of $100,000 referred to in Order 2(a) above (less the sum the subject of Order 5 below) be paid into court pending the resolution of the dispute as to costs between the plaintiff and his former solicitors, VC Lawyers and the determination of any claim by the defendants to set-off, as against the settlement sum, any amounts owing to the defendants by the plaintiff in respect of the occupation fee the subject of orders made earlier in these proceedings and the costs orders made in these proceedings; d. the plaintiff vacate the unit situated and known as 8/7 Short Street, Liverpool (the unit at the Liverpool property), within 30 days of the date of these orders; e. in the event that the plaintiff fails to vacate the unit at the Liverpool property within the time specified in Order 2(d) above, the defendants have leave to issue a writ of possession forthwith after that date. f. there be no order as to the plaintiff's costs of the proceedings, to the intent he will bear his own costs of the proceedings; g. the defendants' costs of the proceedings, up to and including 20 March 2018, calculated on an indemnity basis, are to be paid out of the estate of the late Milorad Adzic; h. the cross-claim be dismissed; i. no order as to costs of the cross-claim; j. the balance of the statement of claim be dismissed; 3. Order that the plaintiff pay the costs of the defendants of the proceedings from and including 23 March 2018 on the ordinary basis. 4. Order that the plaintiff's tutor, Lawrence Myers, indemnify the defendants for any costs payable by the plaintiff pursuant to these orders (and unpaid by the plaintiff) in respect of the defendants' costs of the proceedings from 19 April 2019 to date. 5. Order that the amount of $1,580 collected by the plaintiff from the occupiers of other units at the Liverpool property (as set out in the affidavit of Michelle Leahy affirmed 9 April 2019) be deducted from the settlement sum payable pursuant to Order 2(a). Catchwords: CIVIL PROCEDURE – Hearing – Adjournment – application by plaintiff during the hearing for adjournment to seek further medical evidence – consideration of principles in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 – consideration of the prejudice suffered to the parties and other litigants due to the delay – where there had already been multiple occasions for the plaintiff to obtain further medical evidence – application dismissed