Dusica Moromilov v Dragoslav Vojinovic

[2011] ACTSC 54

DUSICA MOROMILOV v DRAGOSLAV VOJINOVIC
 [2011] ACTSC 54 (1 April 2011)

REAL PROPERTY – caveat – equitable interest – application for extension of caveat – plaintiff seeking transfer of title to defendant be set aside – lengthy delay – prejudice to defendant – application dismissed

SUCCESSION – probate – whether plaintiff should be provided for out of deceased’s estate – Family Provision Act 1969 – lengthy delay in making claim – action struck out

Family Provision Act 1969 (ACT)
Limitation Act 1985 (ACT), s 11

Court Procedures Rules 2006 (ACT), rr 21, 75, 76

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

No.  SC  1026 of 2009

Judge:             Master Harper
Supreme Court of the ACT

Date:              1 April 2011

IN THE SUPREME COURT OF THE     )
  )  No.  SC 1026 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:DUSICA MOROMILOV

Plaintiff

AND:DRAGOSLAV VOLJINOVIC

Defendant

ORDER

Judge:  Master Harper
Date:  1 April 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The application in proceeding dated 2 February 2010 be dismissed.

1. The originating application be dismissed.

1. The plaintiff pay the defendant’s costs of the proceeding, including the costs of the application in proceeding dated 2 February 2010.

1. The caveat no. 1227080 over Block 11 Section 6 Torrens be extended until midnight on 22 April 2011.

1. The plaintiff is the widow of Borisav Vojinovic. The defendant is his son by a previous marriage. The plaintiff commenced the present proceedings, unrepresented, by originating application dated 16 December 2009 seeking the extension of a caveat in her favour over a residential property at Torrens registered in the defendant’s name, relying on an equitable interest.

1. Borisav Vojinovic was born in the former Yugoslavia in 1928. He died in Canberra at the age of seventy-two in 2001. He married at the age of twenty-three and had two sons, the defendant, now aged about fifty-five, and a younger son who is now about fifty-two. It appears that the deceased was also the father of a daughter, apparently born before his marriage to the defendant’s mother. It is not known from the evidence whether he married the mother of his daughter, or what become of that relationship.

1. The deceased’s wife (the mother of his sons) died. He sought introductions with a view to identifying another wife through Serbian newspapers in Australia, within the Serbian community. He married his next wife in June 1994, but the marriage lasted for no more than a few weeks.

1. The plaintiff was born in 1941 in Serbia. In December 1993 she came to Australia to visit a cousin in Melbourne. In May 1994 she met the deceased. She had been told that he was a widower looking for a Serbian wife. He was introduced to her by telephone. He paid for her airfare to Canberra. She flew to Canberra in May 1994, and met him. He told her that his wife had died, and that he had two sons. He proposed that they marry, and told her that he would take care of her financially and that she would not have to work. He told her that he would provide a house for her for the rest of her life. Her reply was that she would like to live in Australia, but that she was still working as a lawyer in Serbia and wanted to continue working until she reached pension age. She went back to Serbia in June 1994. He travelled to Serbia in August 1994, and their relationship developed from there. In January 1995 she returned to Australia with the deceased and they lived together at his house in Torrens. At some point the plaintiff discovered that the deceased had married again after the death of his wife, and that he was not free to marry her until that marriage was dissolved. This happened in due course and they married in October 1996. The plaintiff says that the deceased built a house at Kambah which he gave to the defendant, his elder son. He did not give any property to his younger son, who was living with a woman who had two children from an earlier relationship, something the deceased disapproved of.

1. The plaintiff and the deceased lived together as man and wife until his death. In late 1997 they travelled to Serbia and were away for about five months. They went to Serbia again for a month or so in mid-2000. While they were in Serbia, the deceased was diagnosed with leukaemia. On their return he was admitted to Canberra Hospital for about two months. He received intensive treatment including chemotherapy. After he came home, the plaintiff nursed him intensively, having to deal with bedwetting and soiling. Her evidence is that he assured her that she would be looked after if he died.

1. He died on 4 July 2001 in hospital.

1. On 29 August 2000 the deceased signed a transfer of the Torrens property to the defendant. His signature was witnessed by one Stephen Farrow. The defendant’s signature was witnessed by Matthew Collaery, a clerk with the law firm Bernard Collaery and Associates. Stamp duty of $3,940.00 on an assessed value of $155,000.00 was paid on the same day, and the transfer was registered on 5 September 2000.

1. On 4 September 2000 the deceased signed a will prepared by the same firm in which he appointed the defendant sole executor and left his entire estate to him. The will was witnessed by Mr J R Colquhoun, solicitor, and Mr Matthew Collaery. The plaintiff’s evidence was that she was unaware of the transfer or the making of the will. If the plaintiff’s evidence is accepted, the defendant was an inpatient at Woden Valley Hospital when he signed the transfer and the will. There is evidence that at about that time the plaintiff was unwell herself, requiring prescription medication for a sino-bronchial infection.

1. After her husband died, the plaintiff continued to live in the house at Torrens. About two months after his death, during September 2001, the defendant came to the house with an estate agent and told her that the house was to be sold. He said that the house belonged to him and that she had to vacate it immediately. Soon afterwards the house was advertised for sale. On 21 September 2001 the plaintiff lodged a caveat at the Land Titles Office on the title to the Torrens property, the nature of her estate or interest being “claim to be entitled to land as a dependant of the deceased previous registered proprietor and that transfer to present registered proprietor is invalid”.

1. In November 2001, the present defendant commenced proceedings in this court by originating application for ejectment of the present plaintiff. A statement of claim was filed in January 2002, asserting that the present defendant was the registered proprietor of the land pursuant to a transfer from his late father, and claiming that the present plaintiff was wrongfully in possession. On 26 February 2002 the present plaintiff filed a defence, and on 4 March 2002 she filed, through her then solicitors, a counterclaim seeking a declaration that the deceased had died intestate, a grant of letter of administration in her favour, and an order that the transfer be set aside.

1. No further steps have been taken by either party in that action, since the filing of the counterclaim in March 2002.

1. The effect of rule 75 of the Court Procedures Rules 2006 (ACT) is that both the claim and the counterclaim are taken to have been struck out at the end of one year after the taking of the last step in the matter. Rule 76 gives the court a discretion to reinstate a proceeding if it is in the interests of justice to do so. Neither party has made application to reinstate the 2001 proceeding.

1. The plaintiff stayed in the house at Torrens. In 2007 she went to Serbia for a month or so. While she was away, the defendant arranged for the locks on the house to be changed, and for the plaintiff’s possessions to be removed. Some were returned to her but most were not. On her return to Australia she initially relied on emergency accommodation, eventually being allocated a government flat.

1. The plaintiff became aware that the defendant had provided details of the death of the deceased to the Registrar-General following his death. The details he provided made no reference to the plaintiff and described the deceased as a widower. She subsequently corrected the record.

1. In October 2009, the defendant applied to the Registrar-General for removal (lapsing) of the caveat. It was this which prompted the plaintiff to commence the present application. As I mentioned earlier, the relief sought in the originating application is simply an order that the caveat be extended until further order. On the return date of the originating application I made an interlocutory order extending the caveat. That order remains in place and will have prevented the registration of any other dealing in relation to the property.

1. The plaintiff has not been legally represented. She has been assisted by a friend who speaks English, whom I permitted to appear on her behalf. I gave the plaintiff an opportunity to seek legal representation through the Law Society and the Bar Association. Her application for legal assistance was processed by the ACT Pro Bono Clearing House, a joint venture between the two professional bodies. The process was unsuccessful in providing the plaintiff with any assistance. The Registrar was informed that the Clearing House had referred the matter to senior counsel for advice and that the advice had been that the plaintiff did not have any prospects of success. This was not necessarily a view I shared, and I have been assiduous in ensuring that it has not influenced me to prejudge the outcome of the proceeding. Regrettably it emerged that the senior barrister who provided the advice had appeared on behalf of the present defendant, once before the Registrar and once before the then Master, in early 2002 in the earlier litigation between the parties. The level of the barrister’s knowledge of and involvement in the matter cannot be discerned from the court file. I have no doubt that the barrister had no recollection of that earlier involvement when providing the more recent advice, but it is regrettable that the Clearing House did not obtain further advice from an entirely independent member of the Bar, having regard to the suspicion which might have arisen in the plaintiff’s mind as to whether the advice was completely free of bias in the defendant’s favour.

1. In February 2010, the plaintiff filed an application in proceeding. The application again sought an extension of the caveat. Further orders were sought that the transfer by the deceased to the defendant be set aside, and that the plaintiff be provided for out of the estate of the deceased under the Family Provision Act 1969 (ACT). Neither of these latter orders could be regarded as interlocutory orders in the principal proceeding, though I would be generally disposed to exercise some flexibility in relation to compliance with the Rules where a party is unrepresented and insistence on strict compliance might impede the just resolution of the real issues between the parties, this being one of the objectives of the Rules generally: see r 21, Court Procedures Rules 2006.

1. The legal position is clear. The defendant is the registered proprietor of the property. The plaintiff has no legal interest in it. The transfer was registered before the death of the deceased and the property did not form part of his estate. It seems to me from the limited evidence that the balance of his estate was so modest that a claim under the Family Provision Act would have been pointless.

1. The 2001 litigation between the parties has been struck out. Rule 76 gives the court power to reinstate a proceeding which has been struck out, if it is in the interests of justice to do so. Neither party has asked the court to do so. It is almost ten years since the proceedings were commenced, and more than eight years since the dates on which both the action and the counterclaim are deemed to have been struck out. The relief sought in the counterclaim did not include a claim under the Family Provision Act. Rather, the present plaintiff sought orders which would have resulted in the estate being administered in intestacy. The plaintiff sought a declaration that the transfer of the land was void, effectively the same order she now asks for in her interlocutory application.

1. However, the plaintiff took no steps to pursue that claim from the date the counterclaim was filed in March 2002 until she commenced the present proceeding in December 2009. A further objective of the Rules set out in rule 21 is the timely disposal of proceedings, and their resolution with minimum delay, something which parties to a proceeding are required to help the court to achieve. It would be only in the most extraordinary of circumstances that the court would contemplate reinstating an action which had been struck out by operation of the Rules eight years earlier. A compelling explanation for the delay would need to be forthcoming.

1. The only point in further extending the caveat would be to preserve the status quo pending the determination of the application to set aside the transfer. No proper and formal application for such an order has been made. Quite apart from this, it seems to me that to permit a claim for such an order to proceed to trial now would impose inevitable prejudice on the defendant. The plaintiff would need to establish either that the state of mind of the deceased when he signed the transfer was such that he did not understand what he was doing, and did not intend to give the property to his elder son, or alternatively, that the defendant exercised duress or undue influence in causing his father to sign the transfer.

1. The order was not sought until the filing of the interlocutory application in February 2010, more than nine years after the execution of the transfer. The action has not been conducted on pleadings and there is presently before the court neither an application for extension of the limitation period, nor anything in the nature of a defence pleading the limitation period. The default limitation period is six years: Limitation Act 1985, s 11. I can assume, however, that the defendant would rely on a limitation defence if the matter were to proceed further, which would be bound to succeed, and that the plaintiff would require an extension of the period.

1. Having regard to the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, I am satisfied that to permit an extension would be likely to cause actual prejudice to the defendant. There must be prospective witnesses, including the witness to the signature of the deceased on the transfer, who might have been expected to remember the circumstances closer to the time, but whose memories will inevitably have faded after nine years.

1. Unless the transfer is set aside, there is no practical point in pursuing any challenge to the validity of the will, or making a claim under the Family Provision Act, regardless of limitation issues.

1. I reach these conclusions about the originating application and the interlocutory application with some concerns. The plaintiff may well have had reasonable prospects of success if she had brought her action and proceeded with it promptly. On the evidence in the plaintiff’s case (and I have not seen any evidence for the defendant) he seems to have treated his stepmother shabbily, and without compassion or generosity of spirit. But my task in determining the matter is to do justice according to law. I am bound by legislation, including the Court Procedures Rules, and by precedent. The originating application and the application in proceeding will be dismissed. Costs must follow the event. I shall continue the extension of the caveat for twenty-one days in case there is any appeal against my decision.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date:                1 April 2011

Plaintiff:  In person        
Counsel for the defendant:  Mr C J Ryan
Solicitors for the defendant:  David Lander
Date of hearing:  23 April 2010

Date of judgment:  1 April 2011