Macura v Sarasevic - [2020] NSWCA 119

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Macura v Sarasevic & Anor [2020] NSWCA 119
Hearing dates: 15 June 2020
Date of orders: 15 June 2020
Decision date: 15 June 2020
Before: White JA
Decision:
1. If and to the extent necessary, dispense with any requirement the appellant not commence or carry on these proceedings except with a tutor.
2. Order that the costs of the application be the appellant’s costs in the appeal.
Catchwords: CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors – whether appellant under legal incapacity for the purposes of r 7.14 Uniform Civil Procedure Rules 2005 (NSW) – where appellant represented by a tutor before the primary judge –whether to dispense with the requirement for proceedings to be commenced or carried on by a tutor – where change in appellant’s circumstances since the appointment of a tutor by the primary judge
Legislation Cited: Civil Procedure Act 2005 (NSW) s 14
NSW Trustee and Guardian Act 2009 (NSW) s 41(2)
Cases Cited: Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306
Macura v Saracevic [2019] NSWSC 1409
Macura v Sarasevic [2019] NSWSC 1409
Mao v AMP Superannuation Limited [2015] NSWCA 252
Mao v AMP Superannuation Limited [2018] NSWCA 72
Category: Procedural and other rulings
Parties: Branko David Macura (Appellant)
Dragan Sarasevic (First Respondent)
Milena Mijatovic (Second Respondent)
Representation:
Counsel:
D Boutros, Solicitor (Appellant)
J Bartos (Respondents)
Solicitors:
DB Law & Associates (Appellant)
Jordan’s Law Practice (Respondents)

File Number(s): 2019/356599

Judgment

HIS HONOUR: By notice of motion filed on 24 April 2020 the appellant (Mr Branko Macura) seeks an order that the court “dispense with the need for the applicant to require a tutor”.
The background to this application can be stated fairly shortly. On 8 January 2020 the appellant filed a notice of appeal from orders of Ward CJ in Eq in which her Honour, amongst other things, declared that the appellant and the respondents had reached a settlement agreement as set out in short minutes of order signed by the parties on 20 March 2018 and formalised in short minutes of order signed by the parties’ solicitors on 23 March 2018 (Macura v Sarasevic [2019] NSWSC 1409). Her Honour recorded that the respondents are the executors of the will of the late Mr Milorad Adzic. Her Honour recorded that Mr Macura had instituted proceedings in 2017 in which he claimed that the deceased had made a gift to him donatio mortis causa of property owned by the deceased at Liverpool. Alternatively, Mr Macura sought a family provision order out of the estate or the notional estate of the deceased on the basis that he and the deceased had been in a de facto relationship.
The proceeding before the primary judge was an application by the respondents to enforce an agreement arrived at during a mediation for the settlement of the appellant’s claims for payment of $100,000 inclusive of costs. The appellant claimed…

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 Macura v Sarasevic

Details

AGLC: Macura v Sarasevic [2020] NSWCA 119
Case: [2020] NSWCA 119
Decision Date: 15 June 2020

CaseChat Overview and Summary

The appeal concerned the appellant, Macura, who had been represented by a tutor before the primary judge. The dispute revolved around whether the appellant continued to be under a legal incapacity for the purposes of rule 7.14 of the *Uniform Civil Procedure Rules 2005* (NSW) and whether the requirement for proceedings to be commenced or carried on by a tutor should be dispensed with, given a change in the appellant's circumstances since the initial appointment.

The court was required to determine whether the appellant remained under a legal incapacity necessitating representation by a tutor. It also had to consider whether to exercise its discretion to dispense with the requirement for the appellant to proceed with a tutor, in light of any changes in their circumstances since the tutor was appointed by the primary judge.

White JA, in considering the application, dispensed with any requirement that the appellant not commence or carry on these proceedings except with a tutor. The court ordered that the costs of this application be the appellant's costs in the appeal.

Orders

Orders of the court

1. If and to the extent necessary, dispense with any requirement the appellant not commence or carry on these proceedings except with a tutor.

2. Order that the costs of the application be the appellant’s costs in the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Macura v Sarasevic & Anor [2020] NSWCA 119
Hearing dates:	15 June 2020
Date of orders:	15 June 2020
Decision date:	15 June 2020
Before:	White JA
Decision:	1. If and to the extent necessary, dispense with any requirement the appellant not commence or carry on these proceedings except with a tutor. 2. Order that the costs of the application be the appellant’s costs in the appeal.
Catchwords:	CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors – whether appellant under legal incapacity for the purposes of r 7.14 Uniform Civil Procedure Rules 2005 (NSW) – where appellant represented by a tutor before the primary judge –whether to dispense with the requirement for proceedings to be commenced or carried on by a tutor – where change in appellant’s circumstances since the appointment of a tutor by the primary judge
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 14 NSW Trustee and Guardian Act 2009 (NSW) s 41(2)
Cases Cited:	Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306 Macura v Saracevic [2019] NSWSC 1409 Macura v Sarasevic [2019] NSWSC 1409 Mao v AMP Superannuation Limited [2015] NSWCA 252 Mao v AMP Superannuation Limited [2018] NSWCA 72
Category:	Procedural and other rulings
Parties:	Branko David Macura (Appellant) Dragan Sarasevic (First Respondent) Milena Mijatovic (Second Respondent)
Representation:	Counsel: D Boutros, Solicitor (Appellant) J Bartos (Respondents) Solicitors: DB Law & Associates (Appellant) Jordan’s Law Practice (Respondents)
File Number(s):	2019/356599