Orlovicic v Todorovic [2007] NSWSC 798

Orlovicic v Todorovic [2007] NSWSC 798

The plaintiff, as administrator of the estate, was entitled to possession because the defendant's cross-claim failed: the agreed sole valuer reported that the highest and best use of the land was as a vacant residential allotment and that the defendant's improvements had not added value. Mesne profits were refused because the defendant's evidence, supported by invoices and receipts, showed that his occupation was subject to paying outgoings and maintaining the property. Indemnity costs were refused because the plaintiff's $215,000 offer was not a genuine compromise but effectively required the defendant to capitulate at market value.

Jurisdiction
Australia
Judgment Date
13 July 2007
Procedural Posture
Proceedings for Possession of Land, Mesne Profits and Costs, With Defendant's Cross Claim / Ex Tempore Judgment on Notice of Motion to Amend Statement of Claim and Determination of Possession, Cross Claim, Mesne Profits and Costs
Outcome
Leave to amend granted; cross-claim dismissed; order for possession granted; mesne profits refused; indemnity costs refused; ordinary costs ordered against the defendant.
Legal Topics
['amendment of Statement of Claim' 'order for Possession' 'mesne Profits' 'cross Claim Concerning Improvements to Land' 'indemnity Costs']
['civil Procedure' 'property Law' 'costs'] ['amendment of Statement of Claim' 'order for Possession' 'mesne Profits' 'cross Claim Concerning Improvements to Land' 'indemnity Costs']

Case Brief

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Procedural Posture

Proceedings for Possession of Land, Mesne Profits and Costs, With Defendant's Cross Claim / Ex Tempore Judgment on Notice of Motion to Amend Statement of Claim and Determination of Possession, Cross Claim, Mesne Profits and Costs

Legal Issues

  1. 1 ['Whether the plaintiff should have leave to file an amended statement of claim including a revised property description and a claim for mesne profits.' 'Whether the plaintiff should be granted an order for possession of the premises.' "Whether the defendant's cross-claim based on an alleged oral agreement and improvements to the property should be dismissed." 'Whether the defendant should be ordered to pay mesne profits.' 'Whether the plaintiff should receive indemnity costs.']

Ratio Decidendi

The plaintiff, as administrator of the estate, was entitled to possession because the defendant's cross-claim failed: the agreed sole valuer reported that the highest and best use of the land was as a vacant residential allotment and that the defendant's improvements had not added value. Mesne profits were refused because the defendant's evidence, supported by invoices and receipts, showed that his occupation was subject to paying outgoings and maintaining the property. Indemnity costs were refused because the plaintiff's $215,000 offer was not a genuine compromise but effectively required the defendant to capitulate at market value.

Court Disposition

Leave to amend granted; cross-claim dismissed; order for possession granted; mesne profits refused; indemnity costs refused; ordinary costs ordered against the defendant.

Orders

  • ['Leave granted to file in court the amended statement of claim initialled and dated by the judge.' 'The cross-claim is dismissed.' "Mico Todorovic is to pay Mario Orlovcic's costs of the cross-claim." 'Order for possession in terms of paragraph 1 of the statement of claim.' 'Leave to issue a writ of possession over...