JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FREMANTLE LAWYERS PTY LTD, ASHLEY DAVID WILSON, NICHOLAS EMIL GVOZDIN and ANTE ZOROTOVIC -v- IVAN JOSIP SARICH as executor of the estate of IVAN BRANIMIR SARIC [2019] WASCA 48
CORAM: BUSS P
MURPHY JA
BEECH JA
HEARD: 1 AUGUST 2018
DELIVERED : 20 MARCH 2019
FILE NO/S: CACV 105 of 2017
BETWEEN: FREMANTLE LAWYERS PTY LTD, ASHLEY DAVID WILSON, NICHOLAS EMIL GVOZDIN and ANTE ZOROTOVIC
Appellants
AND
IVAN JOSIP SARICH as executor of the estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH)
First Respondent
IVAN JOSIP SARICH as a beneficiary of the estate of IVAN BRANIMIR SARIC
Second Respondent
BRENDA CAROL SARICH as a beneficiary of the estate of IVAN BRANIMIR SARIC
Third Respondent
LUKA IVAN SARICH as a beneficiary of the estate of IVAN BRANIMIR SARIC by his Guardian Ad Litem BRENDA CAROL SARICH
Fourth Respondent
NATALIJA MARY SARICH as a beneficiary of the estate of IVAN BRANIMIR SARIC by her Guardian Ad Litem BRENDA CAROL SARICH
Fifth Respondent
ANTHONY SARICH as a beneficiary of the estate of IVAN BRANIMIR SARIC
Sixth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: SARICH -v- SARICH [2017] WASC 222
File Number : CIV 1589 of 2017
Catchwords:
Succession - Will - Construction - Illegality - Devises of portions of a single lot - Portions of the single lot not a 'lot' as defined in s 4(1) of the Planning and Development Act 2005 (WA) - The meaning of 'subdivide' in s 135(1)(a) of the Planning and Development Act - Whether the devises were a subdivision of the single lot contrary to s 135(1)(a) of the Planning and Development Act - Whether the trustee under the will held the portions of the single lot upon trust for the beneficiaries specified in the will - The trustee's power to subdivide the single lot
Practice and procedure - Whether a ground in the sixth respondent's notice of contention was relied upon in the primary proceedings - Whether the sixth respondent should be permitted to raise the ground in the appeal
Costs - Whether the primary court's orders as to costs were unreasonable or plainly unjust
Legislation:
Municipal Corporations Act 1906 (WA) (repealed)
Planning and Development Act 2005 (WA), s 4(1), s 135
Road Districts Act 1919 (WA) (repealed)
Town Planning and Development Act 1928 (repealed), s 2, s 20
Transfer of Land Act 1893 (WA), s 166, s 167
Trustees Act 1962 (WA), s 30(1)(d)
Result:
Appeal allowed
Category: A
Representation:
Counsel:
| Appellants | : | Mr M D Cuerden SC |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
| Fifth Respondent | : | No appearance |
| Sixth Respondent | : | Mr G D Cobby |
Solicitors:
| Appellants | : | Denman Popperwell Lawyers |
| First Respondent | : | Delta Legal |
| Second Respondent | : | Delta Legal |
| Third Respondent | : | JK Legal |
| Fourth Respondent | : |
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- Case
- [2019] WASCA 48
- Decision Date
CaseChat Overview and Summary
The court began by examining the language of the will and the statutory definitions relevant to the dispute. It held that the portions of the single lot, as devised, did not constitute a 'lot' under the Planning and Development Act. Consequently, the devises did not amount to a subdivision contrary to the Act. The court further clarified that the trustee under the will held the portions of the single lot upon trust for the beneficiaries specified in the will, and the trustee did not have the power to subdivide the single lot. Regarding the procedural issues, the court determined that a particular ground in the sixth respondent's notice of contention was not properly before the primary court and thus could not be relied upon in the appeal. Finally, the court found that the primary court's orders as to costs were not unreasonable or plainly unjust.
The Court of Appeal affirmed the primary court's findings and orders. The court held that the devises in the will did not constitute a subdivision of the single lot and that the trustee held the portions of the single lot upon trust for the beneficiaries. The appeal was dismissed with costs, and no further orders were made.
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