Antov v Bokan - [2019] NSWSC 1730

Supreme Court

New South Wales

Medium Neutral Citation: Antov v Bokan [2019] NSWSC 1730
Hearing dates: 27 February 2018
Decision date: 27 February 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Refuse the plaintiff’s application for evidence of Zarko Dabeski to be taken by audio visual link.

Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Cases Cited: Australian Securities and Investment Commission v Rich [2004] NSWSC 467
Commissioner of Taxation v Oswal (No 5) [2015] FCA 1504
Category: Procedural and other rulings
Parties: Vase Antov (Plaintiff)
Lidija Bokan (First Defendant)
Radmila Antova (Second Defendant)
Representation:
Counsel:
M Sahade (Plaintiff)
MJ Heath (First Defendant)
Second Defendant - Submitting Appearance
Solicitors:
Oliveri Lawyers (Plaintiff)
Matthews Folbigg (First Defendant)

File Number(s): 2015/00331929
Publication restriction: Nil

EX TEMPORE Judgment

HER HONOUR: This is an application by the plaintiff, opposed by the defendant, for evidence from one of the witnesses in the proceedings to be adduced by audio visual link. The background to the present application is somewhat tortured. An application for family provision was brought in this Court, I understand in around 2015, in relation to the deceased estate of the grandmother of the plaintiff. Those proceedings resulted in a settlement as between the two children of the deceased. The validity or binding nature of that settlement agreement was the subject of a decision by Kunc J in February last year. After the settlement of the family provision proceedings, or after the mediation agreement in relation to the family provision proceedings, an amended summons was filed, in which the present claim was brought by the grandson of the deceased. The matter has been fixed for hearing in June this year before me.
After the date by which affidavit evidence in relation to the plaintiff’s claim was required to be served there was an amendment to the defence by the defendant (filed 8 September 2017), to plead matters of presumed undue influence and an actual undue influence/unconscionable conduct claim. It should be noted that critical to the plaintiff’s claims are two documents said to have been executed by the deceased in Macedonia, being a power of attorney and what is referred to as a contract for a gift. The authenticity of those documents has been in issue since the filing of the original defence in the proceedings.
Those documents are said to have been prepared by a lawyer, Mr Zarko Dabeski (whose name sometimes appears as Zharko Dabeski). The plaintiff has been aware since at least 2009 of the involvement of Mr Dabeski in relation to the documents, since, in his affidavit of 2 November 2016 filed in these proceedings, he deposes (at [39]) to having arranged for Mr Zarko Dabeski to visit his grandmother. The particulars of the actual undue influence claim (particulars to [7J] of the amended defence), include (as particular 1), that the second plaintiff, now the only plaintiff, arranged for a lawyer of his choice, namely Mr Zarko Dabeski, alleged to be a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Antov v Bokan

Details

AGLC: Antov v Bokan [2019] NSWSC 1730
Case: [2019] NSWSC 1730
Decision Date: 27 February 2018

CaseChat Overview and Summary

In Antov v Bokan, the plaintiff, Vase Antov, sought to adduce evidence from Zarko Dabeski by audio-visual link under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). The case involved a dispute over the validity of documents executed by Antov's grandmother in Macedonia, and Dabeski, a lawyer who prepared those documents, was a key witness. The defendant, Lidija Bokan, opposed the application, arguing that it would be unfair to her to allow Dabeski to give evidence by audio-visual link.

The court had to decide whether it would be fair to allow Dabeski to give evidence by audio-visual link. The court considered the nature of the evidence, the potential for it to be disputed, and practical matters such as cost, convenience, and the duration of the proposed evidence. The court also considered the need for the defendant to be able to challenge the credit of the witness and the relevance of the witness's observations about the deceased's capacity when the documents were executed.

The court found that it would be unfair to the defendant to allow Dabeski to give evidence by audio-visual link. The court noted that the defendant had not been able to communicate with Dabeski to discuss procedural aspects of his evidence, and that there were formal deficiencies in the affidavit evidence. The court also noted that the defendant would face significant disadvantages in testing the late evidence, including the need to challenge the authenticity of the documents and the observations of the deceased when executing the documents. The court concluded that the potential for lengthy cross-examination and a significant credit challenge made it necessary for Dabeski to attend in person. The court also noted that there may be other witnesses who could give evidence about the authenticity of the documents.

The court refused the plaintiff's application for evidence of Zarko Dabeski to be taken by audio visual link. The court did not preclude the possibility of the plaintiff taking other steps to facilitate the giving of evidence by Dabeski, such as arranging a conference call with the defendant's legal representatives to discuss procedural aspects of the evidence.

Orders