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Crnjanin v Ioos

Crnjanin v Ioos

Case [2010] NSWSC 750 5 July 2010

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CITATION: Crnjanin v Ioos; Ioos v Crnjanin [2010] NSWSC 750

HEARING DATE(S): 5 July 2010

JUDGMENT DATE :
5 July 2010

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Lindgren AJ

EX TEMPORE JUDGMENT DATE: 5 July 2010

DECISION: Direction to plaintiff trustee (Crnjanin) that he would be justified in paying half share in estate of Olga Lisevich deceased to defendant Marianna Ioos.

CATCHWORDS: TRUSTS - Judicial advice to trustee as to whether he would be justified in paying share in deceased estate to person who claimed to be the beneficiary described in deceased's will as "Marianna Ioos who resides in the USSR" - consideration of problematical evidence of identity - not necessary to prove identity to standard that would apply to support a finding of fact in adversial proceedings.

LEGISLATION CITED: Trustee Act 1925 (NSW)

CATEGORY: Principal judgment

CASES CITED: Macedonia Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonia Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66

PARTIES: Jovan Milan Crnjanin (Plaintiff in 10/187336 and Defendant in 10/107053)
Marianna Ioos (Plaintiff in 10/107053 and Defendant in 10/187336)

FILE NUMBER(S): SC 187336 of 2010; 107053 of 2010

COUNSEL: R Lilley SC (for Crnjanin)
R Colquoun (for Ioos)

SOLICITORS: Shanahans Solicitors (for Crnjanin)
John Drakos Solicitors (for Ioos)

- 10 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

LindGREN AJ

Monday 5 july 2010

2010/107053 JOVAN MILAN CRNJANIN v MARIANNA IOOS

JUDGMENT

1 HIS HONOUR: The plaintiff is the administrator with the will annexed of the estate of Olga Lisevich who died on 22 February 2006. Without any discourtesy intended and for convenience only I will refer to her as "Olga" and to other persons concerned by their first names. Administration was granted to the plaintiff by the Supreme Court of New South Wales on 29 June 2009.

2 By her last will, made on 5 September 1990, Olga appointed her husband Dimitry Lisevich (Dimitry) executor and gave the whole of her estate to him, provided he survived her by one calendar month. Failing this she appointed Alexander Moiseenko (Alexander) as trustee and gave her estate in equal shares to him and to "Marianna Ioos, who resides in the USSR". Dimitry, died on 31 January 1997 and so the alternative dispositions are the relevant ones.

3 The plaintiff seeks a direction under s 63 of the Trustee Act 1925 (NSW) as to whether he would be justified in paying the half share last referred to the defendant (Marianna). He also seeks an order that his costs and Marianna’s costs are to be paid out of Olga’s estate.

4 The only persons beneficially interested in Olga’s estate are the plaintiff as to a half share, and if the result of the present application is favourable to her, Marianna as to the other half share. The plaintiff has made the present application, not to contest Marianna’s entitlement but because the facts raise a question as to whether Marianna is the…

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 Crnjanin v Ioos

Details

AGLC: Crnjanin v Ioos; Ioos v Crnjanin [2010] NSWSC 750
Case: [2010] NSWSC 750
Decision Date: 5 July 2010

CaseChat Overview and Summary

The case of Crnjanin v Ioos involved the estate of a deceased individual, with Crnjanin acting as the trustee of the estate. The dispute centred on the distribution of a share of the estate to a person claiming to be the beneficiary identified in the deceased's will as "Marianna Ioos who resides in the USSR". The matter was heard by the court, which had to consider whether the trustee would be justified in paying the share to the claimant based on the evidence of identity presented.

The central legal issue the court had to address was whether the trustee could rely on the evidence of identity provided by the claimant to make the distribution without proving the identity to the standard required in adversarial proceedings. The court had to determine the appropriate standard of proof for the identification of a beneficiary in a trust context, particularly when the trustee is seeking judicial advice rather than litigating the matter in court.

The court found that the trustee could rely on the evidence of identity if it was sufficient to justify the payment, without needing to prove the identity to the adversarial standard. The court held that the evidence provided by the claimant was sufficient to meet this standard, as it was not necessary for the trustee to prove the identity to the level required in adversarial proceedings. Consequently, the court advised the trustee that it would be justified in paying the share to the claimant based on the evidence provided.

No specific orders were made by the court, as the matter was primarily one of seeking judicial advice. However, the court's determination provided the trustee with the guidance needed to proceed with the distribution of the estate.

Orders