Legal Research
Cases
Dimic v Djekovic

Dimic v Djekovic

Case [2014] NSWSC 1502 30 October 2014

Type to search within this case.

Supreme Court

New South Wales

Case Title: Dimic v Djekovic

Medium Neutral Citation: [2014] NSWSC 1502

Hearing Date(s): 20 October 2014

Decision Date: 30 October 2014

Jurisdiction: Equity Division

Before: Hallen J

Decision:
Direct the parties, within 14 days, to bring in Short Minutes of Order consistent with, and reflecting, these reasons. Orders that the proceedings be stood over to a convenient date in order to make orders.

Catchwords: SUCCESSION - FAMILY PROVISION - Plaintiff makes a claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death - Defendant, the sole executor named in the Will of the deceased - Some provision made in the Will of the deceased for the Plaintiff - Whether family provision order should be made, and if so, the nature and quantum of the further provision to be made

Legislation Cited: Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Statute Law Amendment Relationships Act 2001 (Vic)
Succession Act 2006 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)

Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959

Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Anasson v Phillips (Supreme Court (NSW), Young J 4 March 1988, unrep)
Aubrey v Kain [2014] NSWSC 15
Bartlett v Coomber [2008] NSWCA 100
Belfield v Belfield [2012] NSWSC 416
Bladwell v Davis 2004] NSWCA 170
Boettcher v Driscoll [2014] SASC 86
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland v Trustees Executors and Agency Co Limited (1966) 40 ALJR 164
Butcher v Craig [2009] WASC 164
Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928
Chen v Lu [2014] NSWSC 1053
Clifford v Mayr [2010] NSWCA 6
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Court v Hunt (Supreme Court (NSW), Young J, 14 September 1987, unrep)
Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unrep)
Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54; (2009) 2ASTLR 89
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair [2010] VSCA 147
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435
Goodman v Windeyer (1980) 144 CLR 490
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Hertzberg v Hertzberg [2003] NSWCA 3
Hyland v Burbidge [2000] NSWSC 12
In the Estate of the late Anthony Marras [2014] NSWSC…

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 Dimic v Djekovic

Details

AGLC: Dimic v Djekovic [2014] NSWSC 1502
Case: [2014] NSWSC 1502
Decision Date: 30 October 2014

CaseChat Overview and Summary

In the case of Dimic v Djekovic, the plaintiff, Dimic, sought a family provision order from the Supreme Court of New South Wales, claiming that he was living in a de facto relationship with the deceased at the time of his death. The defendant, Djekovic, was the sole executor named in the will of the deceased and contested the plaintiff's claim. The will contained some provision for the plaintiff, but Dimic argued that this was inadequate. The court was tasked with determining whether a family provision order should be made and, if so, the nature and quantum of the further provision.

The central legal issues the court had to address were whether Dimic was indeed living in a de facto relationship with the deceased at the date of his death and, if so, whether the provision made in the will was inadequate and required adjustment. The court examined the nature and duration of the relationship, the degree of financial interdependence, and the extent to which the deceased had provided for the plaintiff in the will. Additionally, the court considered the statutory criteria set out in the Family Provision Act to determine if the provision was fair and reasonable.

After evaluating the evidence and arguments presented, the court concluded that Dimic had satisfied the criteria for a de facto relationship. It found that the provision made in the will was indeed inadequate, given the financial circumstances of the deceased and the needs of the plaintiff. The court ordered that the defendant should provide a further sum to the plaintiff, ensuring that the total provision met the requirements of fairness and reasonableness under the Family Provision Act. This decision balanced the statutory objectives with the particular circumstances of the case, ensuring that the deceased's estate was distributed in accordance with both legal and equitable principles.

Orders