Davidovic v Vesuvius Australia Pty Ltd (No 2) [2016] NSWSC 1679

Davidovic v Vesuvius Australia Pty Ltd (No 2) [2016] NSWSC 1679

The proceedings remained stayed because the outstanding costs sum of $95,728.75 had not been paid and no application had been made to vary the stay orders. While that stay remained in force, Mr Zugic was not entitled to have an application for substitution as plaintiff determined. His notice of motion was therefore misconceived and incompetent, and was dismissed with costs.

Jurisdiction
Australia
Judgment Date
25 November 2016
Procedural Posture
Practice and Procedure Ruling on Notice of Motion in Equity Proceedings / Application by Interested Party/applicant to Discharge Stay, Be Substituted as Plaintiff and File Amended Statement of Claim
Outcome
Notice of motion filed on 25 October 2016 by Damjan Zugic dismissed with costs.
Legal Topics
['stay of Proceedings Pending Payment of Costs' 'substitution of Plaintiff' 'alleged Assignment of Cause of Action' 'trustee in Bankruptcy Deemed Abandonment of Proceedings' 'leave to Amend Statement of Claim']
['practice and Procedure' 'civil Procedure' 'bankruptcy'] ['stay of Proceedings Pending Payment of Costs' 'substitution of Plaintiff' 'alleged Assignment of Cause of Action' 'trustee in Bankruptcy Deemed Abandonment of Proceedings' 'leave to Amend Statement of Claim']

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Procedural Posture

Practice and Procedure Ruling on Notice of Motion in Equity Proceedings / Application by Interested Party/applicant to Discharge Stay, Be Substituted as Plaintiff and File Amended Statement of Claim

Legal Issues

  1. 1 ["Whether an alleged assignee of the plaintiff's cause of action could seek substitution as plaintiff while a stay of proceedings remained in force." 'Whether the existing stay was discharged or could be lifted without payment of the outstanding costs or variation of the earlier orders.' 'Whether the notice of motion filed on 25 October 2016 was competent.']

Ratio Decidendi

The proceedings remained stayed because the outstanding costs sum of $95,728.75 had not been paid and no application had been made to vary the stay orders. While that stay remained in force, Mr Zugic was not entitled to have an application for substitution as plaintiff determined. His notice of motion was therefore misconceived and incompetent, and was dismissed with costs.

Court Disposition

Notice of motion filed on 25 October 2016 by Damjan Zugic dismissed with costs.

Orders

  • ["Mr Zugic's notice of motion of 25 October 2016 be dismissed with costs." "The defendant's notice of motion of 26 August 2016 be stood over to the Applications List on 2 December 2016."]