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Fremantle Lawyers Pty Ltd v Sarich

Fremantle Lawyers Pty Ltd v Sarich

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Case Copied 20 March 2019 87 min read

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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	:

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.

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Details

Case: [2019] WASCA 48
Decision Date: 20 MARCH 2019

CaseChat Overview and Summary

In the matter of Fremantle Lawyers Pty Ltd v Sarich, the dispute involved the interpretation of a will, specifically the legal consequences of certain devises made within it. The matter was heard in the Supreme Court of Western Australia, with the Court of Appeal subsequently hearing an appeal from the primary decision. The central issue in the case was whether the devises of portions of a single lot, as outlined in the will, constituted a subdivision contrary to the Planning and Development Act 2005 (WA). The court was tasked with interpreting the terms of the will, determining the applicability of the statutory provisions, and assessing the consequences of any illegality in the will's execution. Additionally, the court had to consider whether the trustee held the portions of the single lot upon trust for the beneficiaries and the power of the trustee to subdivide the lot.

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.

Orders