Damevski v Hope - [2016] NSWSC 1231

Supreme Court

New South Wales

Medium Neutral Citation: Damevski v Hope [2016] NSWSC 1231
Hearing dates: 29 August 2016
Date of orders: 06 September 2016
Decision date: 06 September 2016
Jurisdiction: Equity
Before: Pembroke J
Decision:
Summons dismissed

Catchwords: FAMILY PROVISION – claim for additional provision by son and daughter-in-law of deceased – deceased died intestate
FAMILY PROVISION – proceedings commenced out of time – whether sufficient cause for making an order extending the time for the making of the plaintiffs’ application – sufficient cause not established
EQUITY – equitable estoppel by encouragement alleged – whether the plaintiffs acted to their detriment in reasonable reliance
EVIDENCE – caution required when relying on uncorroborated statements said to have been made by the deceased
Legislation Cited: Family Provision Act 1982
Cases Cited: Sidhu v Van Dyke [2014] HCA 19
Steria Ltd v Hutchison [2007] ICR 445
Wilcox v Wilcox [2012] NSWSC 1138
Category: Principal judgment
Parties: Nick Damevski – first plaintiff
Rada Damevski – second plaintiff
Darko Damevski – third plaintiff
Nada Hope – defendant
Representation:
Counsel:
D Liebhold
M Southwick
Solicitors:
D Stanefska & Associates – for the first, second and third plaintiffs
Grahame Howe & Co – for the defendant

File Number(s): 2015/195212

Judgment

Introduction

This case has its origin in the plaintiffs’ understandable desperation to continue to live in a property at Rockdale where they have resided continuously since 1994. But desperation is not enough to justify their claims and I have reached the conclusion that they must fail. The plaintiffs do not have an equity based on the principles of estoppel and constructive trust. Nor do they have a statutory right to additional provision out of the estate of the late Gurga Damevski. And they do not seek an equitable charge to secure the recoupment of any monies expended by them on the property of the deceased.
The first plaintiff (Nick) and the defendant (Nada) are the only children of Tome and Gurga Damevski. Tome died in 2002. His will dated 21 January 2000 left the whole of his estate to his wife Gurga. She died intestate in 2006. The only substantial asset of Gurga’s estate was the Rockdale property, of which she was entitled to be the registered proprietor at the date of her death. The consequence of her intestacy is that Nick and Nada are entitled to share equally in the proceeds of sale of the property. Its estimated value is approximately $1,350,000.
Nick lives in the Rockdale property with his wife (Rada) and son (Darko). He is not satisfied with his statutory entitlement on the intestacy of his mother. Rada and Darko are his co-plaintiffs, although Darko’s Family Provision claim was abandoned during the hearing. The primary factual substance of their claim is that promises were made and expectations raised that led Nick and Rada to believe that the Rockdale property would remain their home after the deaths of Tome and Gurga; that they relied on those promises and changed their position to their detriment;…

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 Damevski v Hope

Details

AGLC: Damevski v Hope [2016] NSWSC 1231
Case: [2016] NSWSC 1231
Decision Date: 06 September 2016

CaseChat Overview and Summary

In the case of Damevski v Hope, the son and daughter-in-law of the deceased, Damevski, sought additional provision from the estate of the deceased under the Family Provision Act. The deceased died intestate, leaving his estate to his widow, who is also the mother of the plaintiffs. The plaintiffs alleged that they had been encouraged by the deceased to provide care and support to him and acted to their detriment in reasonable reliance on this encouragement. The court had to determine whether there was sufficient cause for extending the time for making the application and whether the plaintiffs could establish equitable estoppel by encouragement.

The court considered whether the plaintiffs had acted to their detriment in reasonable reliance on the encouragement provided by the deceased. The court found that the plaintiffs' claims were not made within the statutory time limit, and therefore, they needed to establish sufficient cause for the delay. However, the court held that the plaintiffs had not established sufficient cause for the delay in making the application. The court also considered whether the plaintiffs could rely on an alleged uncorroborated statement made by the deceased. The court cautioned that uncorroborated statements should be treated with caution, and in this case, the court found that the plaintiffs had not established that the deceased had made the alleged statement.

The court dismissed the plaintiffs' claims for additional provision, holding that the plaintiffs had not established sufficient cause for the delay in making the application or that they had acted to their detriment in reasonable reliance on encouragement from the deceased. The court also held that the plaintiffs could not rely on an uncorroborated statement made by the deceased.

The court made an order dismissing the plaintiffs' claims and awarding costs to the defendant. The court held that the plaintiffs had not established the necessary legal grounds for their claims, and therefore, the claims were dismissed. The court also held that the defendant was entitled to costs for the proceedings.

Orders