Bosko Jelaca v Danica Jelaca

[2000] NSWSC 869

CITATION:	Bosko Jelaca v Danica Jelaca [2000] NSWSC 869
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3015/97; 5266/97
HEARING DATE(S):	22 and 23 March 1999, 3 and 4 August 2000
JUDGMENT DATE:	5 September 2000
PARTIES :	Bosko Jelaca v Danica Jelaca Danica Jelaca v Bosko Jelaca
JUDGMENT OF:	Bergin J

COUNSEL :	M Willmott (Plaintiff in 3015/97/Defendant in 5266/97) P Blackburn-Hart (Defendant in 3015/97/Plaintiff 5266/97)
SOLICITORS:	Willis & Bowring (Plaintiff in 3015/97/Defendant in 5266/97) Milena Mijatovich (Defendant in 3015/97/Defendant in 5266/97)
CATCHWORDS:	Application pursuant to s.16(2) of the Family Provision Act 1982 for extension of time to bring proceedings in circumstances of prior agreement and consent dismissal of previous Family Provision Act proceedings - Application for order designating property as notional estate - Defendant's application pursuant to s 66G of the Conveyancing Act 1919 to sell property the subject of previous agreement and Consent Orders in Probate proceedings.
LEGISLATION CITED:	Family Provision Act 1982 Conveyancing Act 1919 Contracts Review Act 1980
CASES CITED:	Chandless-Chandless v Nicholson [1942] 2 KB 321 Commercial Bank of Australia Ltd v Amadio [1982-1983] 151 CLR 447 Crisp v Burns Philp Trustee Company Limited (Holland J, 18 December 1979 unreported) Dare v Furness (1998) 44 NSWLR 493 E I Du Pont De Nemours & Co v Commissioner of Patents & Ors (1987) 16 FCR 423 Golosky v Golosky (NSWCA. Kirby P, Handley & Cripps JJA, 5 October 1993, unreported) Harvey v Phillips (1956) 95 CLR 235 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 Louth v Diprose (1992) 175 CLR 621 Luciano v Rosenblum (1985) 2 NSWLR 65 Mullins v Howell 11 Ch D 763 Newmont Pty Ltd v Laverton Nickel NL (No2) (1981) 1 NSWLR 221 Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185 Warren v McKnight (1996) 40 NSWLR 390 R.D. Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389
DECISION:	Previous Agreement and Consent Orders set aside. Extension of time granted to bring proceedings. Property designated notional estate. Further provision made in favour of the plaintiff pursuant to s. 7 of the Family Provision Act 1982. S. 66G proceedings dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN J

TUESDAY 5 SEPTEMBER 2000

3015/97 - BOSKO JELACA v DANICA JELACA
5266/97 - DANICA JELACA v BOSKO JELACA

JUDGMENT

1 Matter 5266 of 1997 is an application filed on 23 December 1997 by Danica Jelaca (the plaintiff) seeking orders pursuant to s 7 of the Family Provision Act 1982 (the Family Provision Act proceedings) for provision out of the estate of her late husband, Petar Jelaca (the deceased). The defendant in those proceedings is the plaintiff’s stepson Bosko Jelaca (the defendant).

2    The deceased died on 17 November 1992 and by his will made on 21 April 1982 left the whole of his estate in equal shares to the plaintiff and the defendant. The estate consists of the whole of the land in Folio Identifier 3/206425 at Brookvale known as 23 Alfred Road, Brookvale (the Brookvale property) and $7,100 cash.

3 The Family Provision Act proceedings have been heard at the same time as matter 3015 of 1997 which is an application filed on 27 June 1997 by the defendant for orders pursuant to s 66G of the Conveyancing Act 1919, for the appointment of a trustee and the sale of the Brookvale property (the s 66G proceedings).

The deceased

4    The deceased was born in Croatia and his first wife was Croatian. From that marriage the deceased had two sons, one of whom is the defendant who was born on 15 February 1943. The deceased’s first wife and his other son were apparently killed during the war in 1943 when the defendant was six months old. The defendant was then cared for by his grandmother in Lika, Croatia until 1956.

5    The deceased came to Australia and commenced living in Victoria in 1952. He set up his own business of furniture removalist and timber and heavy materials transportation. The deceased remarried in 1954 and the defendant came to Australia in 1956 to live with his father and his stepmother.

6    From his income from the business the deceased purchased land and constructed four houses in the Morwell area of Victoria. It is apparent that the deceased suffered some health problems and was advised to move to a warmer climate.

7    In 1968 the deceased sold the four houses and moved to Sydney. From the proceeds of the sale of those properties in Victoria the deceased purchased the Brookvale property. The deceased and his second wife were divorced in the mid 1970s.

8    In about 1977 the deceased travelled to Yugoslavia on a holiday and met the plaintiff. The relationship developed and at the invitation of the deceased the plaintiff travelled to and arrived in Australia on 19 March 1978. The deceased and the plaintiff were married on 12 August 1978 and they lived together in the Brookvale property until the deceased’s death on 17 November 1992.

The plaintiff

9    The plaintiff is 71 years of age. She was born on 15 January 1929 in Gracac, a village in Croatia. She attended four or five years of primary schooling and left school when she was 12 years of age in June 1941.

10    The plaintiff is one of six children and upon leaving school became a refugee living in different areas of Croatia during the war. The plaintiff’s father died in 1943 and she and the rest of her family returned to the village of Gracac to find that their home had been destroyed.

11    Thereafter the plaintiff and her family lived in the ruins of the house during the summer months for the next few years while the house was rebuilt. During the winter months they stayed with friends in a neighbouring village. After the plaintiff’s mother died in 1947 the plaintiff lived with her brothers and sisters and an uncle and later lived with her eldest brother and his wife and children.

12    Between 1943 and 1978 the plaintiff helped to work the land as a farm worker, looking after the sheep, digging, ploughing and planting crops by hand. She did not earn any income and whenever she needed money for personal expenses her brother would provide it to her. Her brother, who was in charge of the family finances, obtained income by selling the lambs and sheep.

13    When the plaintiff came to Australia and married the deceased she did not speak a great deal of English. She has learnt English over the years but it is her evidence that she is still unable to read English and she feels she is frequently unable to make herself understood in English.

14    The deceased retired soon after his marriage to the plaintiff and from the evidence it is clear the plaintiff and the deceased enjoyed a close and loving relationship. During their fourteen years together the plaintiff did all the “household chores” such as cooking, washing, ironing and cleaning. The plaintiff and the deceased often went shopping together. When they needed to purchase new clothing they would accompany each other and assist in choosing the new items of clothing. Their pension cheques were paid into the same bank account and the deceased paid all the bills and did all the banking.

15    The plaintiff and the deceased went on two overseas holidays, the first in 1980 to the United Kingdom and Yugoslavia and the second in 1983 when they went to Yugoslavia. They also had a number of interstate holidays during their marriage.

16    The plaintiff gave evidence that the deceased had explained to her that she had “a right to half the house” and that when he died he would leave her everything. He also explained that “each and every husband and wife leaves assets to each other”.

17    The plaintiff is unable to drive a car and travels by bus. She walks to the shops to do her shopping and regards herself as generally in good health. Her immediate neighbours look out for her and often visit her. There is one family in the same street with whom the plaintiff is very friendly.

18    Three nephews, sons of the plaintiff’s brother who still lives in Croatia, live in the Brookvale area. Two of these nephews are married with children and the plaintiff sees them frequently. The plaintiff does not have any other relatives or friends outside the Brookvale area.

19    It is the plaintiff’s desire to remain living in the Brookvale property and stay in the area so that she can comfortably have contact with her nephews and their families and the neighbours to whom I have already referred. The plaintiff claims that her poor of command of the English language would make her anxious in moving away from this area and routine.

20    The plaintiff claims that although the Brookvale property has a large number of bedrooms, she regards it as her home and wants to stay living there as long as she can. The plaintiff is able to keep the property clean and in good repair and to pay the rates and insurance premiums.

21    The plaintiff claims that if she was forced to sell the Brookvale property, her present half share, the worth of which she claims is approximately $200,000 to $225,000, would be insufficient to enable her to purchase a small house in the Brookvale area. The plaintiff has expressed a strong desire to live in a house and not in a home unit.

22    The plaintiff’s sole source of income is the fortnightly pension which in 1997 was $353. As at October 1997 the plaintiff’s expenses amounted to approximately $160. The plaintiff has $13,000 in the bank, $11,500 of which is invested on term deposit.

The Brookvale property

23    A real estate agent with eighteen years experience selling real estate in the Brookvale area, Michael Gigliotti, inspected the Brookvale property in 1995. No further inspection has occurred and the reasons for that will emerge later in this judgment.

24    The Brookvale property is a three storey dwelling. The ground floor is full brick and the remainder is brick veneer. The top floor has a balcony. The dwelling faces south and does not have the benefit of very much sun in the winter. It overlooks the Brookvale industrial area.

25    Although Mr Gigliotti could not be certain, his best recollection was that each level of the dwelling could be self contained. He thought each had three bedrooms, a living area, a kitchen and a bathroom. At the time Mr Gigliotti inspected the premises it appeared to him that the plaintiff was the only person residing in the premises.

26    Although Mr Gigliotti did not suggest that he was a qualified valuer, he provided his opinion as to the probable sale price that could be achieved for the property. He was of the opinion that as at 22 March 1999 a sale price that could be achieved may be $450,000 to $500,000. Although there may be a capacity for each floor to be self contained, the property is not the subject of a strata plan. In fact Mr Gigliotti was aware of a recent LEP which had prevented such a process. However, if the property was rented he was of the view that the lower two levels could be rented for $200 per week and the top level with the balcony for $250 per week.

27    Mr Gigliotti also expressed an opinion as to the cost of a three bedroom house in the Brookvale area. He was of the view that a starting price would be $350,000 and a range, depending upon location and condition of the premises, would be $350,000 to $650,000. He was of the view that the possible purchase price of home units in the area was between about $180,000 and $200,000.

28    It is apparent that at the time of the deceased’s death, other parts of the Brookvale property were tenanted. The plaintiff thought that the rental was $150 to $200 per week which was paid to Russo Real Estate in Brookvale. After the deceased’s death the plaintiff directed Russo Real Estate to pay her the rental from those premises.

29    It appears that rental paid to the plaintiff may have been approximately $6,000. However this was not the subject of any documentary material before me and the plaintiff did not appear to have a good recollection of the amount that was paid to her. The plaintiff gave evidence that the tenants were friends of the deceased and that they vacated the premises soon after his demise.

The defendant

30    When the defendant arrived in Australia in 1956 he lived with the deceased and his stepmother in the village of Morwell in Victoria. He attended the Yallourn Technical School until the age of fifteen. In 1958 he left school because his inability to comprehend English adversely affected his studies.

31    After he left school he worked with the deceased in the deceased’s business. During the week he worked as a “jockey” on one of the trucks. This involved carrying furniture and the shovelling of topsoil which was transported to various sites. The defendant worked between 5 and 7 days each week and his hours were from 40 to 60 hours per week.

32    The defendant claimed that the deceased did not pay him any wages for the work that he did and he was required to ask for money for clothes, entertainment and the like. The defendant claims that the deceased gave him irregular small amounts of money for his expenses.

33    The defendant married his first wife in 1961 and moved to Winifred Street in Morwell. He continued to work for the deceased and at the age of 18 when he obtained his driver’s licence, was then paid wages.

34    When the deceased moved to Sydney in about 1968 and sold the business he allowed the defendant to retain one of the trucks. Thereafter the defendant worked as a dairy farmer and later as a rigger on the construction of the Hazelwood Power Station near Morwell and operated the truck on the weekends.

35    The defendant gave evidence that in 1968 the deceased informed him that he had used up all the money that he had saved and asked the defendant for money to help with the building of his house at the Brookvale property. The defendant also claims that the deceased informed him that because of his age he was unable to obtain a loan.

36    The defendant claimed that between 1968 and 1979 he gave $29,000 to the deceased. He remembers that the deceased bought 50,000 bricks and that the defendant paid for half the bricks. He then gave the following evidence:

Generally however the payments were for lesser amounts after I had sold some stock or when I got a bigger than usual milk cheque.

The reference to milk cheque is to the defendant’s occupation as a dairy farmer. His further evidence was:

At and after that time he frequently said to me words to the effect “I will give my half of the house to you. He said to me, “I will have to give half to my wife but you will have the other half”. My father did not repay me any of the money I gave him nor did he pay me any of the proceeds from the sale of the houses.

37    The defendant claimed that as well as giving the deceased money he also worked on the construction of the house at the Brookvale property. He claimed that he worked as a bricklayer’s labourer, helping carpenters, doing some concrete work and painting both inside and outside of the house. He did preliminary work for the plasterers and erected a rock dividing fence. He claimed that every year for 10 years he spent his annual leave of 4 weeks working on the house with the deceased.

38    The plaintiff claimed in his affidavit sworn on 2 February 1998 that his financial position was as follows:

Home at 11 Bubb Street, Moe $68,000
Double block of land at 14/16 Bubb Street, Moe $15,000
1980 Volkswagon Golf $2,000
Household furniture $4,000
______
Total $89,000

39    The defendant claimed in that affidavit that “the real estate is mortgaged to the Bank of Melbourne and the total amount owing to the Mortgagee is $69,000”. This had reduced to $63,000 in December 1998 and when he gave his oral evidence in August 2000 he said that the outstanding amount on the mortgage was $45,000.

40    The defendant also gave evidence in this affidavit that his employment as a rigger earnt him a gross income of $700 per week with deductions for tax ($170), garnishees ($150) and Bank of Melbourne ($140), leaving him with $240 per week to support his wife and daughter. At the time he gave his oral evidence his net income had doubled to $480 per week.

Background to the Proceedings

41    The plaintiff was appointed the sole executor of the deceased’s estate and by 1994 had apparently not taken any action to seek a grant of probate. The defendant commenced proceedings 113204 of 1994 (the Probate proceedings) for a grant of letters of administration in which the plaintiff, as defendant in those proceedings, cross claimed seeking a grant of probate of the deceased’s will.

42 It is apparent that as a result of the commencement of the Probate proceedings the plaintiff attended upon a series of firms of solicitors one of whom, Messrs Vickovich & Associates, filed a Summons in proceedings 2143 of 1995 seeking an order in the plaintiff’s favour pursuant to s 7 of the Family Provision Act 1982 (the first FPA proceedings). That Summons was filed on 5 May 1995 (Ex O).

43    On 14 July 1995 the Probate proceedings and the first FPA proceedings were settled. The Short Minutes of Order in the Probate proceedings were as follows:

By Consent, orders as follows:
1 That the plaintiff discontinue his claim in these proceedings.
2 That the defendant’s Cross Claim seeking a grant of probate of the deceased’s will in common form be referred to the Registrar to be dealt with in Chambers.
3 That the requirement for the defendant to comply with Part 78 Rule 11 be dispensed with.
4 That the parties’ costs of these proceedings be paid out of the estate.
5 Note:
(A) The undertaking of the defendant to the Court:
(i) To proceed with the administration of the estate with all
reasonable expedition;
(ii) To effect registration of a Transmission Application in respect of the realty comprised in the estate known as 23 Alfred Street, Brookvale (“the Property”) into the names of the plaintiff and the defendant as beneficiaries of the deceased’s will within fourteen (14) days of receipt by the defendant’s solicitors of the parchment evidencing the grant of probate subject of the defendant’s Cross Claim herein.
(B) The agreement by the parties to effect a sale of the Property forthwith upon registration of the Transmission Application referred to above. With respect to the procedure for such sale, the following provisions are to apply:
(a) The parties agree to do all things necessary to sell the Property.
(b) The parties agree to sell the property at such price as the parties shall agree on within fourteen days and failing agreement then at such price as may be determined by a licensed real estate agent selected by the parties to be the estimated market value of the Property provided that in the event the parties are unable to agree upon the appointment of a licensed real estate agent then such agent as may be determined by the President of the Real Estate Institute for New South Wales for the time being or his nominee upon the written request of either party. The parties further mutually covenant and agree for the purpose of the sale:
(i) to sign all selling authorities as may be necessary to enable the Property to be listed for sale with licensed real estate agents of the choice of either party;
(ii) not, without the express written consent of the other, unless necessary for the purposes of any auction sale, to cause to be granted to any real estate agent any sole exclusive or similar agency which shall have the effect of binding the parties solely to that estate agent or otherwise entitling any such estate agent to a commission regardless of whether that real estate agent effects a sale to the intent that the parties shall be free to sell without the intervention of an agent or to do business at any relevant time with any real estate agent who shall be able to effect a sale of the Property without there being any liability to any other real estate agent;
(iii) to co-operate in allowing access to the Property at all reasonable times to prospective purchasers and such licensed real estate agents as may have been appointed by the parties;
(iv) to maintain the Property in reasonable condition and repair having regard to its present condition and state of repair, pending completion of the sale of the Property;
(v) if contracts for sale of the property by private treaty have not been exchanged within ten weeks of the date of the listing of the property for sale then the parties agree to cause the property to be sold by way of public auction through a licensed auctioneer appointed by the parties or, failing agreement, to be appointed by the President of the Real Estate Institute of New South Wales for the time being or his nominee upon the written request of either party (herein called the “Auctioneer”);
(vi) If the Property is listed for sale by way of public auction, to fix a reserve price by agreement between the parties. Failing agreement prior to the Auctioneer being appointed, the reserve price shall be determined by the Auctioneer;
(vii) in the event that the Property is sold by way of public auction, then the Auctioneer shall nominate the date of sale which shall be not more than two (2) months after the Auctioneer has been appointed.
(C) The undertaking by the defendant to file forthwith in the Registry the Consent Orders, a copy of which is attached hereto relating to proceedings numbered 2143 of 1995 conducted in the Equity Division of this Court between the defendant as plaintiff and the plaintiff as defendant.
(D) The agreement by the plaintiff that no claim will be made by him against the defendant in respect of any failure by the defendant to let the Property during the period following the death of the deceased and up to and including the sale of the Property and/or in respect of her failure to hitherto seek a grant of probate in respect of the deceased’s will.
6. Liberty to apply on seven (7) days notice.

44    Although these Consent Orders were admitted into evidence as being the Orders agreed to by the parties on 14 July 1995 the orders as entered (Ex B) did not note the agreement to sell the property contained in paragraph (B). The “Consent Orders” in the first FPA proceedings were filed as Terms of Settlement (Ex. C) and provided “By consent Orders 1. Summons dismissed. 2. No order as to costs with the intention that each party shall pay its own costs”.

45 The plaintiff makes an application pursuant to s 16(2) of the Family Provision Act 1982 for an extension of time for bringing the Family Provision Act proceedings notwithstanding the Short Minutes of Order in the Probate proceedings and the Terms of Settlement in the first FPA proceedings.

46    The plaintiff also seeks an order that the Consent Orders made on 14 July 1995 be set aside. The parties have conducted the case on the basis that the agreement referred to in the Orders will have to be set aside or declared void before the plaintiff could succeed in her application. However this is subject to one argument raised by counsel for the plaintiff that such a step would not be necessary by reason of the effect of the combination of the provisions of Part 61 Rule 1, Sch. E Pt2(2) and Part 40 rule 8.

47    Soon after the deceased died the plaintiff went to see Mr Tuckerman, a solicitor at Rees and Tuckerman, solicitors at Brookvale who had apparently acted for the deceased. When the plaintiff attended upon Mr Tuckerman she was accompanied by Mr Bob Bolta, a neighbour and friend who apparently spoke Serbian and translated for the plaintiff.

48    The plaintiff does not recall whether Mr Tuckerman gave her any advice about her capacity to challenge the deceased’s will. She claimed that if Mr Tuckerman did provide her with such advice she does not know what it was. Mr Tuckerman’s retainer was terminated on 30 December 1992.

49    In December 1992 the plaintiff went to see Mr Peter Radan, solicitor at Beacon Hill. It is apparent that she retained his services between that date and late 1994. In November 1993 Mr Radan wrote to the plaintiff advising her that the defendant had given instructions to his solicitors to obtain letters of administration if the plaintiff did not proceed to obtain a grant of probate. In this letter Mr Radan also confirmed that in the past he had discussed with the plaintiff her “right to challenge the terms of the will and to seek that the estate be distributed in a manner more favourable” to her. He confirmed that the plaintiff did not wish to proceed with such an application. He also confirmed that she did not want to proceed with the application for probate. It is apparent that when Mr Radan produced the documents for the plaintiff’s signature she refused to sign them.

50    After the plaintiff terminated Mr Radan’s retainer in about March 1995 Mr Vickovich of Vickovich & Associates was instructed to act in relation to the Probate proceedings. On 24 April 1995 the plaintiff signed a document entitled “Acknowledgment and Instructions” which recorded the following:

2. I acknowledge that the advice of my legal representatives is as follows:
(a) That I finalise proceedings currently before the Supreme Court of New South Wales and brought by Mr Bosko Jelaca as soon as possible.
(b) That ultimately it will be extremely difficult to avoid the Supreme Court making orders that Bosko Jelaca, or someone other than him, be appointed as Trustee of the Estate in order to obtain a grant of probate or letters of administration.
(c) That it is not vital to my interests who is appointed as Trustee, but that it is tactically and practically better for me to remain as Trustee and to obtain probate myself since I am within the jurisdiction of the Court and I reside in the matrimonial property.
(d) That it is in my interest to agree to obtaining probate as soon as possible and to transferring the property into the name of myself and Bosko Jelaca as the two beneficiaries of the estate. At the same time it is in my vital interest to immediately seek leave to commence proceedings by way of summons in the Supreme Court of New South Wales under the Family Provisions Act seeking a larger share of the Estate than that which has been left to me in the Will.
(e) I am advised that if I commence proceedings under the Family Provisions Act then this should serve to postpone any forced sale of the property until such time as my Application has been either settled or disposed of by the Court.
(f) I acknowledge that ultimately it will not be possible to avoid a sale of the matrimonial home unless I can raise finance to pay out Bosko Jelaca the share which the Court orders he is entitled to, or for which he settles. The only way to avoid a sale is likely to be if the Court grants me the entire estate, and I’m advised that this is highly unlikely on the facts that my legal representatives have been given by myself.
3. On the basis of the above advice I instruct my legal representatives to do as follows:
(a) To immediately prepare documents for lodgement in the Supreme Court seeking probate of the will of my late husband by myself as Trustee of the Estate. I also instruct them to prepare a Transmission Application as would be necessary to transfer the property into the names of myself and Bosko Jelaca. I instruct my solicitors to prepare those papers before the Directions Hearing on 28th April 1995.
(b) To immediately seek a settlement of the Application brought by Bosko Jelaca at the Directions Hearing on 28th April 1995. This will be attempted on the basis that I obtain probate as Trustee and that I transfer the property into two names. I would also seek a Release of the Will for that purpose.
(c) To attempt to proceed at the Directions Hearing by way of my undertakings to Bosko Jelaca or his solicitors rather than any undertakings to the Court.
(d) To attempt to settle at the Directions Hearing on the basis of avoiding payment of Bosko Jelaca’s legal costs. However, if this is unavoidable, I instruct my solicitors to agree to payment of a reasonable amount for his costs in order to dispose of the Application.
(e) To commence as soon as possible with my Application for a greater share of the Estate under the Family Provisions Act.

51    Various other matters, including the plaintiff’s willingness to disclose material facts to the legal representatives, were then noted. On 3 May 1995 Mr Vickovich wrote to the plaintiff confirming her appearance at the Supreme Court on 28 April 1995. After referring to some directions that were given to enable a cross claim to be filed in the proceedings and the filing of a Summons for the first FPA proceedings Mr Vickovich wrote:

We are hopeful that Bosko Jelaca will instruct his Solicitors to consent to your proceeding to obtain a grant of probate, and that we may be able to negotiate a settlement of the Family Provision Act claim.

Mr Vickovich sought further instructions for the purpose of filing of affidavits and enclosed his Memorandum of Costs and Disbursements in the amount of $2,337.40.

52    It is apparent that after the plaintiff received Mr Vickovich’s letter of 28 April 1995, Messrs Wood Linden Marshall Williams were instructed. They were the solicitors acting for the plaintiff at the time the Consent Orders and Terms of Settlement were filed in July 1995. Those solicitors noted that the plaintiff had the benefit of an interpreter at a conference on 5 June 1995 at which they received instructions that the plaintiff “confirms doesn’t wish to bring FPA claim”.

53    Messrs Wood Marshall Williams, as they later became, confirmed that the plaintiff had the benefit of an interpreter on the day that the Short Minutes of Order were discussed in the Probate proceedings. They claimed that the plaintiff instructed them to dismiss the first FPA proceedings as she did not wish to pursue them.

54    The plaintiff signed a Transmission Application and the plaintiff and defendant were registered as the joint owners of the Brookvale property on 4 September 1995. In early August 1995 the plaintiff and the defendant also signed an Exclusive Agency Agreement appointing Mr Gigliotti as the exclusive real estate agent for the sale of the Brookvale property. Mr Gigliotti proceeded to advertise the property for sale.

55    In late September and early October 1995 Mr Gigliotti made contact with the plaintiff for the purposes of conducting an inspection of the property, on one occasion with an interested party. On each occasion the plaintiff informed Mr Gigliotti that the house was “not ready”. Mr Gigliotti decided to abandon the sale of the house at that time.

56    In November 1995 the plaintiff called into the offices of Wood Marshall Williams. She had with her a copy of the Transmission Application and the Title Deed. She also had the Probate documents. The plaintiff asked the solicitor that she attended upon why the title was in the joint names of herself and the defendant. From the note of the conversation between the solicitor and the plaintiff (ann. K. Aff.d Milena Mijatovich 16.2.1999) it seems that the plaintiff was quite confused about what was happening at that time.

57    In June 1996 the defendant’s solicitors wrote to the plaintiff’s solicitors and to the plaintiff advising that the defendant now required an auction of the Brookvale property. The plaintiff’s solicitors responded advising that they had not heard from the plaintiff for a year. The letter to the plaintiff advised that the defendant wished to sell the property for $350,000 but at an “asking price” of $400,000.

58    On 18 October 1996 Mr Gigliotti saw the plaintiff in the street and had a short discussion with her. Later that day the plaintiff attended Mr Gigliotti’s office with her friend who apparently was able to translate for her. Mr Gigliotti explained that in accordance with the Consent Orders of July 1995 the property was to be sold. The plaintiff responded to Mr Gigliotti that the Consent Orders were “all wrong”.

59 In November 1996 the defendant’s solicitors wrote again to the plaintiff asking for a response to their previous correspondence and warning that if no response was forthcoming, they had received instructions to commence proceedings. The s 66G proceedings were commenced in June 1997.

60 The plaintiff’s present solicitors were instructed in late 1997 and from the evidence filed by Ms Mijatovich it is clear that a great deal of work has been undertaken by them to unearth what had happened previously and to provide advice to the plaintiff in respect of future proceedings. The process of understanding what had happened previously included correspondence with each of the plaintiff’s previous solicitors and the obtaining of documentation. I am satisfied that as soon as reasonably practicable after receiving instructions, the plaintiff’s present solicitors commenced the Family Provision Act proceedings.

61    This matter was first the subject of a hearing before me in March 1999. Mr P Blackburn-Hart of counsel appeared for the plaintiff and Mr M Willmot of counsel appeared for the defendant. During the course of the hearing Dr Milorad Sokolovic, Psychiatrist, was called to give evidence. As a result of his evidence the matter was adjourned for the purpose of Mr Blackburn-Hart considering his client’s position. Part of that evidence was as follows:

Q Having seen Mrs Jelaca some 14 times, are you now able to say what her mental condition may have been in July of 1995?
A I can suppose that. I can suppose because my opinion is that she is getting worse but my impression is that even then she was not completely able to judge matters as she should. For example, to put signatures.
Q Apart from putting signatures, was she able to express herself in such a way as to be able to give instructions to a solicitor concerning a court case?
A Relatively but not completely.
Q When you say you suppose that she was not able to completely judge matters in 1995, are you able to indicate to the court the general level of her understanding of legal matters in 1995?
A As I stated, she has simple understanding when matters are coming to be more complex, she’s losing confidence and asks, without understanding, more mechanically. That’s the impression about her. She was, I think, most of her life this way and in this process of litigation for her property, she is acting this way but my impression getting worse.
Q I’m concentrating on 1995 at the moment so if we could just concentrate on this year and in particular the period May to July okay?
A My impression is that she was not completely understanding what she did then.
Q In everything?
A Simple matter she did understand but when have to legally think, she doesn’t have legal thinking, and ability.
Q And that applies in 1995?
A It’s her ability. I don’t know then but that’s my general impression of her, the ability that is that. It applies even when she was not completely fit to understand more complex matters but only simple matter.
Q When we are talking about legal matters what about litigation in particular?
A I don’t think she is completely understanding all process of litigation. She’s not sufficiently understanding this but does understand a part of that until it gets complex.
(Tr. 28-29)

And later:

Q What about oral instructions she gave to her solicitors?
A Partially she does understand but when matters are coming to legal discussion, she’s lost.
Q Does your conclusion apply to all relations she had with her various solicitors from 1992 onwards?
A Yes, she has difficulty all the time to understand really questions to her and give one appropriate answer for the purpose of the question. She does answer in her way. Often if simple questions, okay. If questions are more complex, more mechanical.
(Tr. 32)

62    The matter was the subject of a number of mentions before me until early this year. During the adjourned period it is clear that the plaintiff’s legal representatives were concerned to ensure that the plaintiff was able to give proper instructions and to understand advice to enable the matter to be concluded. Application for the appointment of the Protective Commissioner as manager of the affairs of the plaintiff was refused by Justice Young on 24 February 2000.

63    The matter was finally relisted in April 2000 and on 5 May 2000 I was informed by counsel that the plaintiff’s solicitors and counsel were in a position to continue their representation of the plaintiff. The matter was listed for hearing and was heard on 3 and 4 August 2000. Final written submissions were received on 28 August 2000.

The 1995 Agreement and Orders

64    Mr Blackburn-Hart submitted that it is unnecessary to make an order setting aside the agreement of July 1995 reflected in the Consent Orders filed in the Probate proceedings. He relied upon Part 40 rule 8 which provides:

8(1) Where under s 46 (1)(b) and (c) of the Act (which paragraphs relate to dismissal of certain proceedings by a Judge of Appeal) or section 108(2) of the Act (which subsection relates to an order of the Court of Appeal where a verdict cannot be supported) or under these rules, except Part 51 rule 24 (a) and (b) and Part 51AA rule 17(a) and (b) (which paragraphs relate to dismissal of appeal by the Court of Appeal), the Court makes an order for the dismissal of proceedings or for the dismissal of proceedings so far as concerns any cause of action or the whole or any part of any claim for relief, the order for the dismissal shall not, subject to any terms or conditions on which the order for dismissal is made, prevent the plaintiff or claimant from bringing fresh proceedings or claiming the same relief in fresh proceedings.

65    Mr Blackburn-Hart referred me to a number of cases in support of this submission Mullins v Howell [1879] 11 Ch D 763 at 766; Chandless-Chandless v Nicholson [1942] 2 KB 321 at 324; Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185 at 189; R.D. Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 and E I Du Pont De Nemours & Co v Commissioner of Patents & Ors (1987) 16 FCR 423.. It is clear that the first FPA proceedings were not the subject of a hearing on the merits: Newmont Pty Ltd v Laverton Nickel NL (No2) (1981) 1 NSWLR 221. However the dismissal of the first FPA proceedings was a step taken pursuant to an agreement between the plaintiff and the defendant noted in the Consent Orders in the Probate proceedings.

66    The Probate proceedings were settled on the basis that the defendant would discontinue his claim in the Probate proceedings and agree to Probate being granted to the plaintiff. This agreement was in consideration of the plaintiff completing the Transmission Application, agreeing to sell and selling the Brookvale property and filing the Terms of Settlement in the first FPA proceedings. The plaintiff signed the Transmission Application and filed the Terms of Settlement in the first FPA proceedings but has refused to proceed with the sale of the Brookvale property.

67    It may well be that, absent the agreement noted in the Probate proceedings, the plaintiff could proceed, either to revive the first FPA proceedings or to commence new proceedings by reason of Part 40 rule 8. However it seems to me that I must deal with the agreement noted in the Consent Orders filed in the Probate proceedings in any event.

68    As Sheller JA said in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 29, Consent Orders have traditionally been regarded as “a mere creature of the agreement”. It seems to me that the plaintiff has to establish that the agreement and the orders made by the Court pursuant to that agreement should be set aside. Circumstances in which that should occur, as the High Court said in Harvey v Phillips (1956) 95 CLR 235 at 243 - 244, depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it.

69    I am satisfied that the plaintiff’s attendance upon so many different solicitors was a function of the plaintiff’s lack of understanding and/or frustration at not being able to make herself understood or feeling that she could not achieve what she understood that her husband had explained to her that she should have “everything” when he died.

70    A conversation between the plaintiff and the defendant in 1995 supports this conclusion. That was a telephone conversation in which the plaintiff informed the defendant that she could not understand what the solicitors were saying to her (Tr. 60). Additional evidence in support of this conclusion is the conversation between Mr Gigliotti and the plaintiff in October 1996 when the plaintiff informed Mr Gigliotti that she thought the Court orders about which he was speaking to her were “all wrong”.

71    The defendant agreed in evidence that the plaintiff had very limited English. He also agreed that the deceased looked after all the finances and paid the bills and that when the deceased was alive the plaintiff did not have her own bank account. He agreed that to his knowledge the plaintiff could not read English and found it very difficult to make herself understood in English. He also agreed that she knew very little about the world and was barely literate in the Serbian language. However he said she was “smart”. The defendant agreed that the plaintiff had seen a number of solicitors and that she did not trust them and could not understand the advice that she was receiving from them.

72    Mr Blackburn-Hart likened the situation to that outlined in Commercial Bank of Australia Ltd v Amadio [1982-1983] 151 CLR 447 at 467:

As we have seen, if A having actual knowledge that B occupies a situation of special disadvantage in relation to an intended transaction, so that B cannot make a judgment as to what is in his own interests, takes unfair advantage of his (A’s) superior bargaining power or position by entering into that transaction, his conduct in so doing is unconscionable. And if, instead of having actual knowledge of that situation, A is aware of the possibility that that situation may exist or is aware of facts that would raise that possibility in the mind of any reasonable person, the result will be the same.

He also relied upon the following passage of Deane J’s judgment in Louth v Diprose (1992) 175 CLR 621 at 637:

It has long been established that the jurisdiction of courts of equity to relieve against unconscionable dealing extends generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party to the transaction with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that special disability was sufficiently evident to the other party to make it prima facie unfair or “unconscionable” that that other party procure, accept or retain the benefit of, the disadvantaged party’s assent to the impugned transaction in the circumstances in which he or she procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable….
The adverse circumstances which may constitute a special disability for the purposes of the principle relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible of being comprehensively catalogued. In Bromley v Ryan , Fullagar J listed some examples of such special disability: “poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary”. As Fullagar J remarked, the common characteristic of such adverse circumstances “seems to be that they have the effect of placing one party at a serious disadvantage vis-a-vis the other”.

73    Mr Blackburn-Hart submitted that the plaintiff was under a special disability of which the defendant had notice. He submitted that the defendant is not able to rely upon the fact that the plaintiff had instructed solicitors to advise her in the 1995 “transaction” because he knew from his conversation with her that she did not understand their advice.

74    The plaintiff admitted in cross examination that Mr Vickovich, whose firm filed the Summons in the first FPA proceedings, had advised her that she may be able to achieve “10 percent more but in order to get that he will take 20 percent”. The plaintiff’s further evidence was:

He told me that I could obtain 10 percent more and stay in the house until two years longer while that doesn’t mean much to me, two years longer doesn’t mean anything to me.
(Tr. 13)

75    The plaintiff was also cross examined about the advice given to her by Mr Marshall, Mr Vickovich’s successor. The following evidence was given:

Q Did you understand this, if the house was to be divided between you and Bosko as according to the will, if that was to be done the house would have to be sold, you understood that, didn’t you?
A Yes certainly, certainly, and I would not allow for house to be sold neither for us to live together, Bosko and I to live together because we are not part of the family.
Q You also knew if you went to the Court to get more the house would also have to be sold even if you got more that 50%?
A Yeah, yeah, that’s why I was asking for the house, the whole house so I can live in it.

(Tr.13)

76    In an effective waiver of privilege the plaintiff called evidence in relation to the previous advice she had received from a variety of legal practitioners. She was not cross examined at all about the “facts” she had given to Mr Vickovich which apparently led him to have the plaintiff sign an acknowledgment that advice had been given that it was “highly unlikely on the facts that my legal representatives have been given by myself” that a Court would grant the plaintiff the entire estate.

77    Although this acknowledgment is in evidence and it may be that more facts than I have been given were given to Mr Vickovich, such acknowledgment of advice can be no more than a matter of curiosity.

78    The evidence the plaintiff gave as to her understanding that she could obtain “10 percent more” is relied upon by Mr Willmott in support of his submission that the plaintiff understood that she had an entitlement to challenge the will and made a decision to abandon such entitlement. The abandonment is alleged to have occurred in July 1995 when the plaintiff signed the Consent Orders and filed the Terms of Settlement in the first FPA proceedings. It is therefore important to analyse what actually happened in July 1995 when the Consent Orders were signed.

79    The plaintiff claims that when she attended Court the interpreter spoke Macedonian in a different dialect from that which she spoke. She claimed that she signed the Consent Orders and subsequent documents because:

I felt I had no one else to turn to and nowhere else to go. I had seen solicitors but they would not say to me that the house was mine. They would only say that the house must be in two names. I waited for probate for the house to be in my name and finish once and for all. I signed the document because I was very tired and sick. I was fed up and I could not take it any more. I was frustrated the solicitor would not read the documents to me in a way I could understand.

80    The plaintiff claimed that she did not see the Summons in the first FPA proceedings until she was shown it by her present solicitor and barrister in about December 1997. She was not challenged in relation to this claim. She also claimed that the Consent Orders were taken home by her and she was informed by Mr Alagich, an interpreter, that if she did not sign the Consent Orders she could not put an end to the proceedings. She also claimed that she understood that if she did not sign them Mr Vickovich would not continue to act for her. She signed the document at her home in the presence of Mr Alagich and they attended the Post Office and faxed the document to Mr Vickovich.

81    Mr Willmott submitted that the signing of the Transmission Application and the appointment of Mr Gigliotti as the exclusive agent demonstrates that the plaintiff understood what was happening. I see it somewhat differently because of further evidence given by the plaintiff.

82    It appears that the plaintiff placed quite a deal of reliance upon an explanation given to her in relation to clause 7 of the will. She seems to have reached an erroneous understanding that if she became the “trustee” when Probate was granted she would have an entitlement to do whatever she wished with the house. Clause 7 of the will provided:

7 I EMPOWER my Trustee with absolute discretion to sell call in and convert into money subject to such terms and conditions as my Trustee shall think fit all or any part of my real or personal estate BUT NEVERTHELESS I EMPOWER my Trustee to retain all or any part of my estate in the same form and condition or invest it in the same manner as may exist at my death and to hold the same investments or any portion thereof for such time as my Trustee shall think expedient without being responsible for any loss occasioned thereby.

83    The plaintiff attempted to communicate this understanding to a solicitor at Messrs Wood Marshall Williams on 10 November 1995. It appears from that exchange that although the plaintiff signed the Consent Orders and the Transmission Application she was perplexed to find that the house was in the joint names of herself and the defendant. That solicitor made the following file note of the plaintiff’s attendance:

Mrs Jelaca called in. She had with her a copy of the Transmission Application and the Title Deed. She also had the Probate document. The Land Titles Office had written simply “WOOD LINDEN” on the Title Deed and she accordingly thought she had to discuss it with me. She asked why the title was in the joint names of herself and her son. I said it was in joint names because the Will said it should be joint names and the Transmission Application which she had signed said that it was to go in both names. She says that she does not write or speak English but I noted that she had a translator with her when she agreed to any arrangements with us and she acknowledged this. She pointed out the clause in the Will allowing the property to be sold by the Trustee. I noted that the Trustee apparently had that power but if the property would sold, her son would get half of the proceeds. She also pointed out that the provision in the Will which said that if she was living separately from her husband at the time of his death, the property was to be transferred into her son’s name only. I pointed out this was scarcely to her advantage and she said in any case that she was in fact living with her husband at the time of his death. The clause therefore appears to have been irrelevant.
I could not understand any further basis for concern on her part. She appeared to understand my responses to her queries although her English is extremely limited.

84    This presentation seems consistent with the plaintiff’s evidence that she understood that under clause 7 she had power to sell the property without any requirement to distribute the estate to anyone. She claimed “my husband gives me all rights here like he had said to me during his life. This is how he wanted it”. And later “the house should have been in my name but still it is not” (Affd 19.2.99 par 13 and 16).

85    The defendant claimed that the plaintiff telephoned him on 31 July 1995. He said “this was the first time that I had had contact with (the plaintiff) since my father’s funeral”. He claimed that the telephone discussion was very friendly and that the plaintiff asked him to come to Sydney straight away so that they could go to the estate agent to arrange the sale of the house. The defendant then flew up to Sydney a few days later and attended the real estate agent with the plaintiff.

86    This attendance upon Mr Gigliotti was prior to the registration of the two names on the title of the Brookvale property. It was also prior to the plaintiff receiving the documents from the Land Titles Office and the Probate documents. The plaintiff’s willingness to appoint Mr Gigliotti is also consistent with the understanding of her ability to sell the house under clause 7.

87    The plaintiff’s lack of trust of solicitors, her slow mentation, her limited education, the fact that she was semi-literate in her own language with very limited understanding of the English language, persuades me that I should accept the plaintiff’s evidence. I am satisfied that the plaintiff signed the Consent Orders and other documents consequent upon those Orders without properly comprehending that she was giving up her right to seek a more favourable entitlement under the deceased’s will or properly understanding what was to happen in respect of her future accommodation arrangements.

88    I am satisfied in all the circumstances that at the time the agreement was entered into it was unjust generally and also within that meaning under the Contracts Review Act 1980 and that it should be declared void.

Extension of time

89 There are a number of factors to be considered in an application for an extension of time pursuant to s 16(2) to bring proceedings under the Family Provision Act 1982. The Court is precluded from extending the time unless sufficient cause is shown for the application not having been made within eighteen months after the death of the deceased (s 16(3)).

90    The factors for consideration include the sufficiency of the explanation of delay in making the claim; whether there would be any prejudice to beneficiaries; whether there has been any unconscionable conduct by the applicant and the strength of the applicant’s case: Warren v McKnight (1996) 40 NSWLR 390.

91    There is no evidence of any unconscionable conduct in this case.

92    The defendant is the only other beneficiary. In most case cases an extension of time will prejudice other beneficiaries if the applicant is successful in achieving further provision under the will. However an important factor to be taken into account is whether during the period of delay a beneficiary may have acted to his or her detriment in reliance upon the provision under the will being forthcoming to that beneficiary. There is no evidence of any such conduct by the defendant in this case.

93    The reasons for delay in bringing this action are intrinsically intertwined with the findings that I have made in respect of the plaintiff’s understanding, or lack thereof, of the advices she received between 1992 and 1995 and the comprehension of the proceedings in 1995.

94    Dr Sokolovic’s evidence (tr. 32 -36) is further support for a finding that the plaintiff’s continuing search for a solicitor whom she trusted was not a disregard for Court process or time limits.

95    The merits of the plaintiff’s case is another matter relevant for consideration in this application for an extension of time. The plaintiff’s primary need of accommodation, and the evidence to which I have already referred relating to her age and present assets must be viewed in contrast to the defendant’s competing circumstances.

The plaintiff’s claim for provision

96    The plaintiff claims an entitlement to a sum that will enable her to have sufficient income to permit her to live in a style to which she is accustomed and a sum to provide her with a fund to enable her to meet any unforeseen contingencies: Luciano v Rosenblum (1985) 2 NSWLR 65 at 69.

97    In Golosky v Golosky (NSWCA. Kirby P, Handley & Cripps JJA, 5 October 1993. Unreported) Kirby P noted at p 9 that “it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse should be provided, as well, with a fund to meet unforseen contingencies”.

98    The evidence demonstrates that if the property was sold and the proceeds divided consistently with the deceased’s will the plaintiff would certainly not have enough money to purchase a small house in the same area and certainly would have no fund available for contingencies. In my view she would be severely restricted in the choices for her future lifestyle. The plaintiff has lived in the Brookvale property for twenty two years and her anxiety at the prospect of losing her home is patent.

99    The defendant submitted that there is no evidence in respect of the present needs of the plaintiff and the Court is left simply to guess at those needs. This is not quite right. The position as put by the plaintiff is that her needs have remained unchanged since she swore her affidavit of 13 October 1997 except for the disclosure of the $13,000 savings.

100    The defendant had claimed in his affidavit of 2 February 1998 that he owned a double block of land at 14 and 16 Bubb Street, Moe. The figure placed next to that double block of land was $15,000. In cross examination the defendant claimed that he intended that the figure should be $15,000 for each block making a total worth of $30,000. The defendant swore an affidavit the following year, 15 February 1999, and annexed a kerbside valuation from John Kerr & Associates Real Estate Pty Ltd of $65,000 in relation to his home at 11 Bubb Street, Moe.

101    Mr Kerr also advised that “Mr Jelaca has advised me that he does not own 14/16 Bubb Street having sold the property two years ago”. This suggestion seemed at odds with an affidavit sworn in 1998 claiming ownership of the blocks and valuing them at $15,000, with an intention to convey that they were really worth $30,000. The defendant agreed that he purchased the land on 28 February 1995 for $35,000. He then said that he “lost it” because he could not keep up the payments and when the blocks were sold he received only $800.

102    The defendant also gave evidence that he had originally owned three houses, two old ones and the one in which he now lives at 11 Bubb Street. He said that he sold those two older houses receiving $45,000 for the first and $40,000 for the second. He gave evidence that he used the money from the sale of those old houses to build his house at 11 Bubb Street. There was quite a deal of confusing evidence in relation to the defendant’s financial position in this regard which included receipt of a payment of $19,000 when he was made redundant some ten years ago.

103    The evidence relating to the defendant’s capacity to reduce his mortgage to the Bank of Melbourne from $63,000 in December 1998 to $45,000 in August 2000 was also very puzzling. He seemed to suggest that the redundancy payment may have been used to reduce that mortgage, however this evidence was at odds with earlier evidence that he had used his redundancy payment to pay for what he described as a “crash”. He claimed to have had a motor vehicle accident in which he was uninsured. The redundancy payment was also claimed to have been received ten years prior to the reduction of the mortgage.

104    The defendant was then asked whether he still owned a property at 18 Brock Street, Moe. He denied that he owned it. He said that he sold the old house in about 1988 or 1990, having purchased it in about 1983. The defendant was then confronted with his 1997 tax return in which he claimed that he was the 100% owner of the property at 18 Brock Street, Moe and that he received a gross rental in that year of $5,400 with expenses of $4,311 (Ex. G). He then said that he had sold it to a widow with four children for $2,500 who was paying $110 per week apparently to him or the bank. In re-examination he claimed that he was not receiving the rent but that he was just paying the money for the “lady so I get rid of the bill”. He then claimed the widow was living in the home and had a “10 year contract” with him.

105    The defendant was also confronted with a copy of the Certificate of Title Vol 9070 Folio 841 for the property 14-16 Bubb Street (Ex E). That property search was conducted on 1 August 2000 and still showed the defendant as the registered proprietor with a mortgage to the Bank of Melbourne.

106    Another aspect of the defendant’s evidence was his claim that he had paid $29,000 to the deceased. The defendant’s evidence was inconsistent in many respects. Some of that evidence is as follows:

Q And in another paragraph of the same affidavit and a later affidavit you’re saying that you paid him $29,000 to help him?
A Cash money yeah.
Q To help him?
A Yes.
…….
Q So over a six year period you gave him a total of $29,000?
A Correct.
(Tr. 27)

And:

Q The figure you have put in your affidavits is the exact figure of $29,000 right?
A Yes.
Q How do you say it is that exact figure and no other figure?
A Because doing a tax thing you’re got know where your money is, and I added up many years back, 29,000, oh plus more.
Q When did you add it up?
A Oh, 1973.
(Tr. 29)

And:

Q You wrote it down somewhere?
A Well on a cheque butt.
Q When you say the cheque butt, was this on for one of the cheques that you paid to your father or to somebody else?
A Well, what happened on the farm, the joint burnt down and all the documents and the cheque and that got burnt out too as well so it was a bad thing to keeping all the good things in the house because the fire comes up and destroyed the house. I lost the house on the farm.
Q So it wasn’t easy then to keep good tax records if all your records if all records had been destroyed by fire?
A Well, every year when you fill in your tax you’re got the tax records, for the next year you start the new one. But I couldn’t help the house got burnt down what can I do?
Q Of course, but I want to know is you say you wrote it on a cheque butt?
A Cheques, yes.
Q Cheques more than one cheque butt?
A More, of course.
Q Okay and who did you make out the cheques to?
A From Bob Jelaca to Petar Jelaca.
Q So you paid your father by cheque?
A Yeah.
Q I thought you said earlier that you paid him by cash?
A Well, cheque is a cash, is it or it not?
Q Well, is it?
A Well, cheque is cash but still cash money.
Q Well what you carry in your wallet today is cash?
A Yeah but you can.
Q It is not a cheque?
A Carry a cheque too.
Q What I want is know, Mr Jelaca, is what did you put in your father’s hand each time you gave him money, was it a cheque or was it cash?
A Cheque and cash.
Q Cheque and cash?
A Yeah.
(Tr. 31)

107    The defendant gave further evidence that he provided an additional $12,000 to the deceased to assist in the property settlement of the deceased’s divorce from his second wife (Tr. 32). In relation to the payment made to the deceased’s second wife it is apparent that $30,000 was paid to the former Mrs Jelaca in 1977 at which time the deceased obtained a loan from the Bank of New South Wales (Ex. J).

108    The defendant was then asked if the deceased had given him any money. He admitted that the deceased had given him money in the early 1980s for a trip to Yugoslavia when he was travelling overseas to marry for a second time. He also admitted receiving cash on his wedding day and $1,000 when his daughter was born (Tr. 47).

109    The defendant was then shown two letters that he had written to the deceased and the plaintiff (Ex. K and Ex. L). The English translation of those letters (Ex. M) indicates that in 1986 the defendant wrote:

Dear Dad
I have managed to grab some time to say hello. I want to thank you very much for your help and I’ll return the same as soon as possible.

110    In 1987 the defendant wrote once again in the following terms:

I thank you very much for the package and the things.
I have purchased my third house and now I have three houses. I have not yet received my compensation but I expect to receive it within about two weeks. For rent for one house I receive $100 and for the second house I receive $85 and I also carry out some repairs to improve the houses. I still haven’t got a job I have to go to school a lot so that I will be able to get a job.

111    This last mentioned reference to the lack of employment is inconsistent with the defendant’s earlier evidence in which he said that he had never been unemployed in his life (Tr.16). It is indicative of much of the defendant’s evidence. The reference to “compensation” was never properly explained.

112    During his cross examination the defendant said that the reason that he gave the deceased the money was because the deceased had said to him that he would give him half the house. He said otherwise he would have pressed the deceased to give him his money back (Tr. 39). He also said that if the deceased had not said that he would give him half the house he would have sued him for the money that he owed him (Tr. 41).

113    Although the evidence of when the alleged payments were said to have been made was very confusing it is very clear that the defendant claimed consistently that such payments were made prior to 1986. However in the 1986 letter (Ex. K) the defendant makes no mention of the help that the deceased had given him being in reduction of what he owed him. Far from that, he thanked him and said he would “return the same” as soon as possible.

114    The defendant’s evidence was extremely unsatisfactory. I prefer the documentary evidence and conclude that the defendant probably still owns the two blocks of land at 14 and 16 Bubb Street, Moe and the 18 Brock Street, Moe property. I am also not satisfied that $29,000 was paid to the deceased by the defendant. It seems far more likely that the deceased was providing assistance to the defendant and his second wife in particular during the 1980s.

115    The plaintiff was not really challenged on the amount of her income and expenses. The upkeep of the Brookvale property may in time require expenditure beyond that available from the plaintiff’s income. It may be that in time the plaintiff will require other accommodation, including the provision of nursing and/or medical care. To subject this plaintiff to the regime considered in Crisp v Burns Philp Trustee Company Limited (Holland J, 18 December 1979 unreported ) is in my view inappropriate.

116 I am satisfied that the plaintiff has been left without adequate provision for her proper maintenance in life. I am also satisfied that sufficient cause has been shown to extend the period within which to commence the Family Provision Act proceedings up to and including the time within which the proceedings were commenced. It is therefore necessary to decide what provision should be made for the plaintiff out of the deceased’s estate.

117    As a result of the distribution of the estate to the defendant by reason of the completion of the Transmission Application the question of the designation of the defendant’s share in the property as notional estate arises.

118    Section 24 of the Act provides that if the Court is satisfied that an order for provision ought to be made, and that as a result of distribution, property became held by the defendant the Court may, subject to ss 27 and 28 of the Act make an order designating such property as notional estate of the deceased.

119    The matters to be considered in the designation of property as notional estate include the importance of not interfering with reasonable expectations in relation to property and the substantial justice and merits involved in making or refusing to make the order.

120    The Court is required to have regard to the value and the nature of the property, any changes over the time which has elapsed since the distribution, whether the property has been applied so as to produce income and any other matters which the Court considers relevant in the circumstances (s. 27(2))

121    I have carefully considered the importance of not interfering with reasonable expectations in relation to the Brookvale property and I am satisfied that the substantial justice and merits favour the making of an order in the plaintiff’s favour in this case. Although income was derived from the property prior to the deceased’s death, there is no evidence that any income has been derived from the property since that time. The $6,000 or thereabouts referred to in the evidence appears to have been money held by the real estate agents up to the time of the departure of the tenants after the deceased’s death. The evidence that the tenants or boarders did so depart was not challenged.

122    I have had regard to the nature of the property and the assessment made by Mr Gigliotti that in 1999 it was probably worth approximately $500,000. I have also considered the capacity for the property to accommodate boarders who might make payments of rent in due course and the probable fund required to purchase a small house in the Brookvale area.

123    Section 28(5) is applicable in these circumstances and provides:

(5) On an application in relation to a deceased person, being an application:
(a) made pursuant to an order under s 16 allowing the application to be made;
……..
the Court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied:
(c) that:
(i) the property was the subject of the
prescribed transaction or distribution;
(ii) the person by whom it is held holds the
property as a result of the prescribed transaction or distribution as trustee only; and
(iii) the property is not vested in interest in any
beneficiary under the trust; or
(d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity, during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property.

124    I am guided by the observations made by Cohen J in Dare v Furness (1998) 44 NSWLR 493 at 503 in which His Honour read section 28(5) as precluding the Court from making an order designating property as notional estate unless “either” paragraph (c) or (d) of the section is satisfied. It seems in this case, as was the case in Dare v Furness, that paragraph (c) is not applicable and that the plaintiff must rely on paragraph (d) to successfully remove the preclusion.

125    Mr Blackburn-Hart submitted that Cohen J erred in his interpretation of the meaning of the term “incapacity” in s 28(5)(d) of the Act. The relevant portions attacked in the judgment appear on page 503G to 504D. It is unnecessary for me to decide the point raised because of the view that I take in respect of the plaintiff’s special circumstances separate from any “incapacity” as defined by Cohen J in Dare v Furness.

126    However what Cohen J said in Dare v Furness at 503 - 504 seems to me to be a very sound approach but simply not applicable in this case. The plaintiff is not a person that fits within the definition of the incapacity referred to by Cohen J. In my view incapacity is but one instance of a “special circumstance” that would justify the making of an order. The problems the plaintiff encountered to which I have referred earlier in the judgment, which do not amount to an incapacity within the meaning of the section as defined by Cohen J, in my view do amount to circumstances special enough to justify the making of an order.

127    From his will it is clear that the deceased wanted his only son to have a share in his estate. However I am of the view that unfortunately the deceased failed to make adequate provision for his widow. Consistently with the opinion expressed by Handley JA in the dissenting judgment in Golosky v Golosky (at p.16) I am of the view in this case that there should be no question of cutting down what would otherwise be proper provision for the plaintiff in order to preserve in whole or in part the benefits the defendant took under the will. I am also of the view that adequate provision in this case can only be appropriately achieved by the plaintiff having the whole of the estate.

128    I am satisfied that I should make an order designating the defendant’s half share in the property as notional estate. I am also satisfied that the whole of the defendant’s share should be transferred to the plaintiff by way of further provision for her out of the estate of the deceased. I am satisfied that the whole of the estate, that is the Brookvale property and the $7,100 in cash, should go to the plaintiff.

129 In these circumstances the s 66G proceedings are dismissed.

130    The question of the costs of the proceedings has been the subject of further written submissions by each of the parties including submissions received on 4 September 2000 after notice was given that the judgment was to be delivered on 5 September 2000.

131 The plaintiff submits that the appropriate order in the circumstances is that each party pay their own costs. The plaintiff submits that the defendant, inconsistently with what was put on his behalf, has not taken the role of the executor in defending the proceedings. It is submitted that the proceedings are in truth adversarial and that the defendant did not bring the s 66G proceedings or defend the Family Provision Act proceedings in an unselfish pursuit of the public interests or the rights of the beneficiaries. It is submitted that he has tried hard to protect his own interests and that in the circumstances, the plaintiff having been successful, the costs should not be borne by the estate.

132    Mr Willmott in a very helpful outline of submissions in respect of costs has reminded the Court that the defendant is a beneficiary under the will freely made by his late father and, consistent with principles long established, did not have to justify to the Court why he should retain that entitlement. In the circumstances of the “fault” not resting with him but rather with the testator or others the defendant should not have to bear his own costs.

133 In a further submission, which is important, Mr Willmott submitted that the prolongation of the proceedings by reason of Dr Sokolovic’s evidence and the further consideration that had to be given to the matter was not the responsibility of the defendant. This prolongation was caused by matters within the plaintiff’s control. I am also satisfied that the defendant tried to avoid what he saw as the necessity of bringing the s 66G proceedings, but in the circumstances was left with little option but to bring the proceedings to finalise the matter.

134    I am satisfied that to do justice between the parties in respect of the costs of these two proceedings the defendant’s costs in both proceedings should be paid.

Orders

No 5266 of 1997

1 The time within which to bring proceedings numbered 5266 of 1997 is extended pursuant to s 16(2) of the Family Provision Act1982 up to and including the date upon which the Summons was filed.

2 The agreement made between the plaintiff and the defendant on 14 July 1995 and set out in paragraphs 5B, C and D of the Short Minutes of Order of that date in the Probate proceedings is declared void and of no effect.

3 The orders made in Proceedings 2143 of 1995 are set aside.

4 The proceedings in matter 2143 of 1995 are consolidated with matter no 5266 of 1997.

5 The property known as 23 Alfred Street, Brookvale in the State of New South Wales as to one half share, registered in the name of the defendant and being part of the land in Folio Identifier 3/206425 is designated notional estate of the deceased.

6 An order pursuant to s 7 of the Family Provision Act 1982 that in lieu of the provision made by the deceased for the plaintiff in his will made on 21 April 1982 the whole of the deceased’s estate including that designated notional estate is given to the plaintiff absolutely.

7 The defendant is to complete all documentation and do all things necessary to transfer the Brookvale property from his name to the plaintiff’s name forthwith.

8 The defendant’s, Bosko Jelaca, costs are to be paid out of the estate.

Matter 3015 of 1997

1 The proceedings are dismissed.

2 The defendant, Danica Jelaca, is to pay the plaintiff’s Bosko Jelaca, costs.

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Last Modified: 09/27/2000