Matusevich & Ors v. Nipperess & Ors

[2008] QSC 275

SUPREME COURT OF QUEENSLAND

CITATION:

Matusevich & Ors v Nipperess & Ors [2008] QSC 275

PARTIES:

NIKOLAI KORNEEVICH MATUSEVICH and RUFINA PHILLIPOVNA STRELNIKOVA and GALINA PETROVNA STRELNIKOVA and NINA PETROVNA KLUCHINSKAYA
(plaintiffs)
v
JANICE MAY NIPPERESS and ALLA BRUNCKHORST
(first defendant)
and
NICHOLAS BABIY and TATIANA FLORIANOVA
(second defendant)

FILE NO:

855 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

10 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

3 July 2008

JUDGE:

Daubney J

ORDER:

1.   That that the plaintiffs provide security, in a form satisfactory to the Registrar, for the first defendants’ costs up to and including the first day of trial in the sum of $25,000

2.   If such security for costs is not provided within 28 days, the plaintiffs’ proceeding against the first defendants will be stayed

3.   Costs reserved

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – RESIDENCE OUT OF JURISDICTION – where deceased had made a number of wills – where plaintiff contends that wills dated 12 January 2004 and 19 January 2004 fail because the deceased lacked testamentary capacity – where plaintiffs claim as beneficiaries upon intestacy – where first defendant applies for security for costs – where plaintiffs are impecunious and resident in Kazakhstan – where no reciprocal arrangement for enforcement of judgments between Australia and Kazakhstan – where order for security likely to stifle claim – where significant doubt as to merits of plaintiffs’ claim – whether order for security ought be made

Uniform Civil Procedure Rules 1999 (Qld)

P.S.Chellaram v China Ocean Shipping (1991) 102 ALR 321
Re Devoy Fitzgerald and Tender v Fitzgerald [1943] St R Qd 137

COUNSEL:

D J Morgan for the plaintiffs
M K Conrick for the first defendant

SOLICITORS:

Compass Legal Solutions for the plaintiffs
Spranklins for the first defendant

1. Rufina Stash (‘the deceased’) died on 18 September 2004.  She was 90 years old.  She had been married twice during her lifetime, but had no children from either marriage.  She had emigrated from Siberia to Queensland some 47 years prior to her death.

1. The material before me discloses that the deceased had made a number of wills in the years prior to her death.  In reverse chronological order, they were:

-     a will dated 19 January 2004 prepared by Peter Rowlands, solicitor, appointing the first defendants as executors;

-     a will dated 12 January 2004 prepared by the Public Trustee appointing the second defendants as executors;

-     a will dated 9 December 2002 prepared by Peter Rowlands, solicitor, appointing the first defendants as executors;

-     a will dated 1 March 2000 prepared by K A Taylor, solicitor, appointing Mykola Serdiuk and Russ Brunckhorst as executors.

1. It also appears, from the material, that the deceased made an ‘informal’ will of some sort in August 2002, another will in January 2002, and a previous will as long ago as May 1994, but the evidence concerning these is sketchy and incomplete.

1. The plaintiffs in this proceeding are relatives of the…