Beljan v Ristic - [2016] QDC 133

DISTRICT COURT OF QUEENSLAND

CITATION:

Beljan v Ristic [2016] QDC 133

PARTIES:

BRANISLAV BELJAN
(applicant)

v

PETER RISTIC
(respondent)

FILE NO/S:

126 of 2010

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

23 May 2016, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2016

JUDGE:

Everson DCJ

ORDER:

1.   The application for leave to proceed is dismissed.

2.   The originating application is struck out.

3.   The applicant is to pay the respondent’s costs of and incidental to the proceeding on the standard basis.

CATCHWORDS:

PRACTICE – Family provision application – dismissal of proceedings for want of prosecution – relevant considerations – whether justification for delay – whether breach of implied undertaking to proceed expeditiously – prospect of success.

Uniform and Civil Procedure Rules 1999, r 430, 389(2), 371, 5

Succession Act 1981, 41(8)

Energo Form ACT Pty Ltd v Beljan [2015] ACTSC 257

Re Brown, Deceased [1952] St. R. Qd. 47

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

White v Barron (1980) 144 CLR 431

COUNSEL:

P J Goodwin for the applicant

H L Blattman for the respondent

SOLICITORS:

Carswell and Company for the applicant

Diamond Lawyers for the respondent

Before me are two competing applications in relation to a family provision application, which was filed on 9 March 2010. The applicant, in respect of the originating application, is Mr Beljan. The respondent is his brother, Mr Ristic. I will refer to Mr Beljan as the applicant, and Mr Ristic as the respondent. The applicant brings an application seeking leave to proceed pursuant to rule 389(2) of the Uniform and Civil Procedure Rules 1999 (“UCPR”).The respondent brings an application seeking to strike out the proceeding for want of prosecution pursuant to rule 371.

The estate is that of Zagorka Ristic, who was the mother of both the applicant and the respondent. She died on 18 June 2009, leaving the applicant and the respondent as the executors of her will. In her will, she left her entire estate to the respondent. It is common ground between the parties that the only notable asset of the estate was her house, which has now been sold for non-payment of rates by the Gold Coast City Council. Neither the applicant nor the respondent have taken the necessary steps to obtain a grant of probate, despite the fact that Ms Ristic, died nearly seven years ago. The only step taken in the proceeding before me was the filing of the originating application. A non-complying supporting affidavit sworn on information and belief by the applicant’s then solicitor is the only documentation which was filed in support of the originating application. The affidavit is not what was contemplated by Practice Direction number 8 of 2001, and is not compliant with rule 430 of the UCPR. Despite the parties having engaged in negotiations at various times, nothing has really been done to progress this matter at all.

The leading decision in respect of applications of the type before…

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.

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Details

Case: [2016] QDC 133
Decision Date: 23 May 2016, ex tempore

CaseChat Overview and Summary

Beljan v Ristic involves a family provision application where the applicant sought to challenge the validity of the respondent's will, claiming an inadequate provision for the applicant. The matter was brought before the court, which was tasked with deciding whether the application should be dismissed for want of prosecution and if the applicant had breached any implied undertaking to proceed with the matter expeditiously. Additionally, the court had to assess whether there were any relevant considerations that justified the delay and the prospects of success for the applicant's claims.

The legal issues that the court needed to resolve included the standard for dismissing a proceeding for want of prosecution, the existence of an implied undertaking to proceed with the matter expeditiously, and the factors that could justify any delay. The court had to determine if the applicant's delay in proceeding with the case was justified and whether it was reasonable to proceed with the application given the circumstances. Furthermore, the court assessed the merits of the applicant's claims to decide if there was a reasonable prospect of success.

In examining the matter, the court found that the applicant had not provided a satisfactory justification for the delay in proceeding with the application. The court held that the applicant had breached the implied undertaking to proceed with the matter expeditiously. Additionally, the court concluded that there were no compelling factors to excuse the delay, and the prospects of success for the applicant's claims were not promising. As a result, the court dismissed the application for leave to proceed and struck out the originating application. The court also ordered the applicant to pay the respondent's costs of and incidental to the proceeding on the standard basis.

Orders

Orders of the court

1. The application for leave to proceed is dismissed.

2. The originating application is struck out.

3. The applicant is to pay the respondent’s costs of and incidental to the proceeding on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Beljan v Ristic [2016] QDC 133
PARTIES:	BRANISLAV BELJAN (applicant) v PETER RISTIC (respondent)
FILE NO/S:	126 of 2010
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court
DELIVERED ON:	23 May 2016, ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2016
JUDGE:	Everson DCJ
ORDER:	1. The application for leave to proceed is dismissed. 2. The originating application is struck out. 3. The applicant is to pay the respondent’s costs of and incidental to the proceeding on the standard basis.
CATCHWORDS:	PRACTICE – Family provision application – dismissal of proceedings for want of prosecution – relevant considerations – whether justification for delay – whether breach of implied undertaking to proceed expeditiously – prospect of success. Uniform and Civil Procedure Rules 1999, r 430, 389(2), 371, 5 Succession Act 1981, 41(8) Energo Form ACT Pty Ltd v Beljan [2015] ACTSC 257 Re Brown, Deceased [1952] St. R. Qd. 47 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 White v Barron (1980) 144 CLR 431
COUNSEL:	P J Goodwin for the applicant H L Blattman for the respondent
SOLICITORS:	Carswell and Company for the applicant Diamond Lawyers for the respondent