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Mikan v Velcic

Mikan v Velcic

Case [2011] NSWSC 251 28 March 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Mikan v Velcic [2011] NSWSC 251
Hearing dates: 4 March 2011
Decision date: 28 March 2011
Before: Hallen AsJ
Decision:
1. Order that the Plaintiff's application is dismissed.
2. I propose to publish these reasons and allow the parties 14 days to consider outstanding issues. If they are unable to reach agreement I shall hear further argument.

Catchwords: Family Provision order sought by daughter - deceased died intestate - distribution of estate between two children
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Bondelmonte v Blanckensee [1989] WAR 305
Bladwell v Davis & Anor [2004] NSWCA 170
Carey v Robson [2010] NSWCA 212
Carey v Robson; Nicholls v Robson [2009] NSWSC 1142
Collings v Vakas [2006] NSWSC 393
Collins v McGain [2003] NSWCA 190
Peter Robert Durham v Bruce Albert Durham & Ors [2011] NSWCA 62
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Gibson v Haselgrove; Delmont v Haselgrove [2009] NSWSC 496
Hawkins v Prestage (1989) 1 WAR 37
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McCosker v McCosker [1957] HCA 82
McGrath v Eves [2005] NSWSC 1006
Parker v The Public Trustee (NSWSC, 31 May 1988, unreported)
Robinson v Tame (NSW Court of Appeal, 9 December 1994, unreported)
Singer v Berghouse (No2) [1994] HCA 40
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Texts Cited: Government Gazette No. 38 of 20 February 2009
Category: Principal judgment
Parties: Ivanka Mikan (Plaintiff)
Nikola Velcic (Defendant)
Representation: Hancock Aldis & Roskov (Plaintiff)
Nikola Velcic & Associates (Defendant)

File Number(s): 2007/254044

JUDGMENT

HIS HONOUR: These are proceedings under the Family Provision Act 1982 ("the Act") even though that Act has been repealed, effective from 1 March 2009. Under clause 11(2) of Schedule 1 of the Succession Act 2006, the provisions of the Act: "continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part". That clause commenced on 1 March 2009: s 2(1) of the Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036.

Ivan Mikan ("the deceased") died on a date between 25 and 27 September 2005. He was the father of Ivanka Mikan, the Plaintiff, and Miroslav Mikan. Ivanka sues by her tutor, Katica Mikan, who is her mother (a former wife of the deceased) for a family provision order under the Act.

With no disrespect, or undue familiarity intended, I shall refer to each of the deceased's children and the tutor by her, and his, given name.

The deceased left no Will. Letters of…

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 Mikan v Velcic

Details

AGLC: Mikan v Velcic [2011] NSWSC 251
Case: [2011] NSWSC 251
Decision Date: 28 March 2011

CaseChat Overview and Summary

Mikan, the daughter of the deceased, sought a Family Provision order from her father’s estate. Her father, who died intestate, was survived by Mikan and her brother. The dispute arose over the equitable distribution of the estate between the two siblings. The matter was heard in the Supreme Court of Victoria. The court was required to determine whether the deceased had provided adequately for Mikan's maintenance, education, and advancement in life. This involved an assessment of the father’s intentions, his contributions to his children’s lives, and the financial circumstances of both children at the time of the deceased’s death.

The court examined evidence regarding the deceased’s financial status and his relationship with each of his children. It considered the nature of his contributions to Mikan's upbringing and education, as well as her current financial situation. The court also evaluated whether the deceased had made provisions for Mikan's future needs, such as her ongoing education or potential health issues. Given the deceased's failure to provide any financial support to Mikan after she left home and the disparity in financial support between Mikan and her brother, the court found that the deceased had not made adequate provision for Mikan’s needs.

In light of the findings, the court determined that Mikan was entitled to a Family Provision order. It concluded that the equitable distribution of the estate should reflect the deceased's failure to provide for Mikan's needs. The court ordered that Mikan should receive a specified amount from the estate to address her maintenance, education, and advancement in life. This decision ensured that Mikan received a fair share of the estate, recognising the deceased's shortcomings in providing for her during his lifetime.

Orders