Antov v Bokan

Case [2018] NSWSC 1474


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Antov v Bokan [2018] NSWSC 1474
Hearing dates: 12 April 2018; 24 and 30 May 2018; 7 June 2018; 12-14 June 2018; 22 June 2018
Date of orders: 03 October 2018
Decision date: 03 October 2018
Jurisdiction:Equity
Before: Ward CJ in Eq
Decision:

1.   Plaintiff’s further amended statement of claim be dismissed with costs.
2.   Declare that the execution by the deceased of one or more copies of the document entitled Macedonian Power of Attorney (a notarised copy of which is Exhibit B in these proceedings) in favour of the plaintiff was procured by the undue influence and unconscionable conduct of the plaintiff and is of no effect.
3.   Order the plaintiff to pay the cross-claimant’s costs of the cross-claim and otherwise make no order in relation to the costs of the cross-claim.

Catchwords:

ESTOPPEL – Promissory estoppel – Plaintiff claimed to have relied upon expectation or assumption created by representations by the deceased that upon sale of her property at Granville the plaintiff would be entitled to use of the proceeds and that the deceased would leave her entire assets as a gift to the plaintiff – Representations allegedly contained in a Macedonian Power of Attorney and Contract for a Gift allegedly executed by the deceased in October 2009 – Whether the documents, if authentic, contained the pleaded representations – Whether the plaintiff relied on the representations as pleaded such that detriment would now be suffered if the expectation or assumption not fulfilled – Held plaintiff had not established that the representations as pleaded were made or that he had detrimentally relied on the representations as pleaded – Claim for relief on basis of promissory estoppel dismissed

 

EQUITY – Undue influence – Presumption of undue influence where documents executed by grandparent in favour of grandchild – Held presumption had not been rebutted in relation to Macedonian Power of Attorney – Declaration made that execution of Macedonian Power of Attorney by the deceased was procured by undue influence and of no effect

  EQUITY – Unconscionable conduct – Whether execution by the deceased of the Macedonian Power of Attorney was affected by unconscionable conduct – Declaration made that execution of Macedonian Power of Attorney by the deceased was procured by unconscionable conduct and of no effect
Legislation Cited: Civil Procedure Act 2005 (NSW), s 73
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Evidence Act 1995 (NSW), ss 48, 49, 51, 55, 56, 57, 58, 67, 68, 69, 183
Guardianship Act 1987 (NSW)
Limitations Act 1969 (NSW)
Powers of Attorney Act 2003 (NSW), s 16
Practice Note SC Eq 7
Succession Act 2006 (NSW), ss 59, 95
Uniform Civil Procedure Rules 2005 (NSW), rr 6.3, 6.4, 31.3, 31.5, 36.4
Cases Cited: Antova v Bokan [2017] NSWSC 115
Antova v Bokan (No 2) [2017] NSWSC 556
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Ashton v Pratt (2015) 88…

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Antov v Bokan [2018] NSWSC 1474
Case
[2018] NSWSC 1474
Decision Date

CaseChat Overview and Summary

The case of Antov v Bokan involved a dispute between the plaintiff, Antov, and the defendant, Bokan, regarding the validity of certain documents and the existence of certain representations made by the deceased. Antov claimed that he had relied on the expectation or assumption created by the deceased's representations that he would be entitled to the proceeds from the sale of her property and that the deceased would leave her entire assets as a gift to him. These representations were allegedly contained in a Macedonian Power of Attorney and a Contract for a Gift executed by the deceased in October 2009.

The court was required to decide whether the documents, if authentic, contained the representations as pleaded, and whether the plaintiff had relied on these representations such that he would suffer detriment if the expectation or assumption was not fulfilled. The court also needed to determine whether the presumption of undue influence had been rebutted and whether the execution of the Macedonian Power of Attorney was affected by unconscionable conduct.

The court found that the plaintiff had not established that the representations as pleaded were made or that he had detrimentally relied on the representations as pleaded. As a result, the claim for relief on the basis of promissory estoppel was dismissed. The court also found that the presumption of undue influence had not been rebutted in relation to the Macedonian Power of Attorney, and that the execution of the Macedonian Power of Attorney by the deceased was procured by undue influence and of no effect. Additionally, the court found that the execution of the Macedonian Power of Attorney by the deceased was procured by unconscionable conduct and of no effect.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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