Kolar v Dernovsek - [2005] NSWSC 838

CITATION:
Kolar v Dernovsek [2005] NSWSC 838

HEARING DATE(S): 2, 3, 4, 5, 6 and 9 May 2005

JUDGMENT DATE :

24 August 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Associate Justice McLaughlin at 1

DECISION:
(1). I order that the summons be dismissed. (2). I order that the Plaintiff pay the costs of the Defendants, such costs to be on the indemnity basis. (3). I order that the Defendants be entitled to recoup from the estate of the late Dusan Dernovsek ("the Deceased") the difference between the foregoing costs which they may recover from the Plaintiff and their costs on the indemnity basis. (4). The exhibits may be returned.

CATCHWORDS:
Succession. Family Provision. Whether Plaintiff is an eligible person. Assserted domestic relationship. Asserted membership of same household. Whether Plaintiff was living with Deceased. Obligation upon an applicant to disclose as fully and as frankly as possible all details of applicant's financial and material circumstances. Whether Plaintiff has, in any event, been left without adequate provision for his proper maintenance. Circumstances in which it is appropriate to order indemnity costs against an unsuccessful applicant.

LEGISLATION CITED:
Family Provision Act 1982
Property (Relationships) Act 1984

CASES CITED:
Singer v Berghouse (1994) 181 CLR 201

PARTIES:
Milko Kolar (Plaintiff)
Magda Dernovsek (First Defendant)
Vladimir Borisov (Second Defendant)

FILE NUMBER(S):
SC 3963 of 2004

COUNSEL:
Ms D. Coulton (Plaintiff, 2 and 3 May 2005)
In person (Plaintiff, 3, 4, 5, 6, and 9 May 2005)
Mr. P. Hallen SC and Miss S. Hill (Defendants)

SOLICITORS:
Vizzone Ruggero & Associates (Plaintiff)
Uther Webster & Evans (Defendants)

LOWER COURT JURISDICTION:

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 24 August 2005

3963/04 - MILKO KOLAR –v- MAGDA DERNOVSEK and
ANOR

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By Summons filed on 15 July 2004 Milko Kolar claims an order for provision for his maintenance and advancement in life out of the estate and/or notional estate of the late Dusan Dernovsek (to whom I shall refer as “the Deceased”).

3 The Deceased, who was unmarried and childless, died on 22 January 2004, aged 75. He left a will dated 10 October 2001, probate whereof was on 23 February 2004 granted to Magda Dernovsek and Vladimir Borisov, the executors named in such will (who are the Defendants to the present proceedings).

4 By that will the Deceased made gifts of three chattels (including a gift to the Plaintiff of a 1992 Mercedes Benz motor car), and gave three pecuniary legacies (including a gift to the Plaintiff of $25,000). The Deceased gave the residue of his estate to his sister Magda Dernovsek, the first Defendant herein.

5 The inventory of property discloses the following assets of the Deceased:

House property situate at and known as 6 Drummoyne Avenue, Drummoyne, to which an estimated value of $3,100,000 was ascribed

House property situate at and known as 1 Bridge Street, Balmain, to which an…

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 Kolar v Dernovsek

Details

AGLC: Kolar v Dernovsek [2005] NSWSC 838
Case: [2005] NSWSC 838
Decision Date: 24 August 2005

CaseChat Overview and Summary

The case of Kolar v Dernovsek involves a dispute regarding succession and family provision claims, brought before the court by the Plaintiff, Kolar, against the Defendant, Dernovsek. Kolar claims to be an eligible person under the Family Provision Act, asserting a domestic relationship and membership of the same household with the Deceased. The central issue for the court to decide was whether Kolar was indeed an eligible person, and if he had been left without adequate provision for his proper maintenance. The court also needed to determine the extent of Kolar's obligation to disclose all financial and material circumstances as fully and frankly as possible. Additionally, the court examined the circumstances in which it would be appropriate to order indemnity costs against an unsuccessful applicant.

The court meticulously examined the evidence presented to establish the nature of the relationship between Kolar and the Deceased. It analysed whether the Plaintiff had convincingly demonstrated a domestic relationship and continuous cohabitation with the Deceased. The court also scrutinised the Plaintiff's financial disclosures and assessed whether they had been made as fully and frankly as possible. Ultimately, the court found that Kolar did not meet the criteria for an eligible person under the Family Provision Act. The court concluded that Kolar had not been left without adequate provision for his proper maintenance and ordered indemnity costs against him due to the unsuccessful nature of his application.

The reasoning behind the court's decision was grounded in the statutory requirements of the Family Provision Act and the evidence provided by both parties. The court concluded that the Plaintiff had not established the necessary elements of a domestic relationship or continuous cohabitation with the Deceased. Furthermore, the court held that the Plaintiff had not fully disclosed his financial circumstances, which impacted the court's assessment of his application. Consequently, the court found that the Plaintiff was not an eligible person under the Act and was not left without adequate provision for his proper maintenance. The court also determined that ordering indemnity costs against the Plaintiff was appropriate given the unsuccessful nature of his application.

The final orders of the court included dismissing the Plaintiff's application for family provision and ordering the Plaintiff to pay the Defendant's costs of the proceeding. The court held that the Plaintiff had not met the legal requirements to be considered an eligible person under the Family Provision Act and that he had not been left without adequate provision for his proper maintenance. The decision underscores the importance of fully and frankly disclosing financial and material circumstances in such applications, as well as the stringent criteria that must be met to establish a domestic relationship and continuous cohabitation with the Deceased.

Orders