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Josifovski v Velevski

Josifovski v Velevski

Case [2013] NSWSC 1103 14 August 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Kiril Josifovski (aka Kiro Josifovski) as Administrator of the estates of the late Snezana Velevski (aka Snezana Velevska) and the late Daniela Velevska v Ljube Velevski [2013] NSWSC 1103
Hearing dates: 30 May, 12 August 2013
Decision date: 14 August 2013
Jurisdiction: Equity Division
Before: Kunc J
Decision:
Declarations and orders for sale made

Catchwords: WILLS, PROBATE AND ADMINISTRATION - Forfeiture under public policy rule - Defendant killed wife and children - Joint tenancy - Intestacy - Order for sale
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Forfeiture Act 1995 (NSW)
Wills, Probate and Administration Act 1898 (NSW)
Cases Cited: Helton v Allen (1940) 63 CLR 691
Kelly v Kelly [2007] NSWSC 1076
Nay v Iskov [2012] NSWSC 598
Public Trustee v Fraser (1987) 9 NSWLR 433
Rasmanis v Jurewitsch & Anor (1970) 70 SR (NSW) 407
Regina v Velevski [1999] NSWCCA 96
Troja v Troja (1994) 33 NSWLR 269
Velevski v R [2002] HCA 4; (2002) 187 ALR 233; (2002) 76 ALJR 402
Texts Cited: K. Mackie, The Forfeiture Rule: the Destination of Property Interests on Homicide (1997) 2(2) Newc LR 30
Category: Principal judgment
Parties: Kiril Josifovski (Plaintiff)
Ljube Velevski (Defendant)
Representation: Counsel: Ms K. Balendra (Plaintiff)
Solicitors: Whitelaw McDonald (Plaintiff)

File Number(s): 2013/92178
Publication restriction: No

Judgment

Summary

The defendant was the registered proprietor as joint tenant with his wife ("Mrs Velevski") of land at Berkley near Wollongong (the "Property"). The defendant was convicted of murdering his wife and their infant children. The plaintiff is Mrs Velevski's father and the administrator of her estate and of the estate of his youngest grandchild.

The plaintiff invokes the forfeiture rule. He seeks declarations and consequential relief to the effect that the defendant holds his late wife's interest in the Property on trust for the plaintiff as administrator of her estate and that the plaintiff be appointed trustee for sale of the Property. The plaintiff has made out his case for that relief.

Notice to the defendant

The defendant is a prisoner at the Goulburn Correctional Centre. He was served with the plaintiff's summons and supporting affidavit.

The defendant did not appear at the first return date of the summons before me for hearing. The proceedings have been adjourned on several occasions while steps were taken by the plaintiff to determine what, if any, role the defendant wished to play in these proceedings. At one point it was thought that he would be legally represented for the purposes of consenting to the relief in the summons.

The defendant apparently retained the services of Mr K.E. Becker of Counsel. When the proceedings were last mentioned before me, Ms K. Balendra of Counsel, appearing for the plaintiff, tendered a letter dated 5 August 2013 to her from Mr Becker in which he said:

This morning I have received communication from Mr Velevski, in Goulburn Correctional Centre, regarding the issue of the Court action over…

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 Josifovski v Velevski

Details

AGLC: Josifovski v Velevski [2013] NSWSC 1103
Case: [2013] NSWSC 1103
Decision Date: 14 August 2013

CaseChat Overview and Summary

The case of Josifovski v Velevski involved a dispute over the estate of a deceased person. Josifovski was the administrator of the estate of his late father, who had been killed by Velevski. The deceased had been a joint tenant with his wife and children, all of whom were also killed by Velevski. The dispute centred on whether Velevski was entitled to benefit from the deceased's estate, and if not, how the estate should be distributed. The court had to determine if Velevski should be disqualified from inheriting due to the public policy rule that prevents a person from benefiting from their own wrongdoing.

The central legal issue was whether Velevski, who was responsible for the deaths of the deceased's wife and children, could inherit under the joint tenancy or intestacy provisions of the law. The court had to examine the application of the public policy rule and its implications for the distribution of the estate. It was also necessary to consider whether the forfeiture rule applied and, if so, how it affected the rights of the parties involved.

The court held that Velevski's actions in killing the deceased's wife and children constituted a clear breach of public policy, and therefore he was disqualified from inheriting from the estate. The court determined that the forfeiture rule applied, and Velevski's interest in the property was extinguished. The estate was then subject to distribution under the intestacy rules, and the court ordered that the property be sold to satisfy the debts of the estate and distribute the remaining proceeds according to the applicable laws. This decision ensured that Velevski did not benefit from his criminal actions and that the estate was distributed in accordance with the wishes of the deceased, if possible, or the laws of intestacy.

Orders