Nedljkovic v Orozovic - [2005] NSWSC 755

CITATION:
Nedljkovic v Orozovic [2005] NSWSC 755
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26/07/2005

JUDGMENT DATE :

28 July 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Associate Justice Macready at 1

DECISION:
Paragraph 62

CATCHWORDS:
Family Provision. Application under the Family Provision Act by a partner of the deceased of 30 years. Held de facto relationship with deceased. Order for provision made.

PARTIES:
Leposova Nedljkovic v Sreten Orozovic (Estate of Dusan Paripovic)

FILE NUMBER(S):
SC 4684/2004

COUNSEL:
Mr M. Heath for plaintiff
Mr B. Ralston for defendant

SOLICITORS:
Konstan Lawyers for plaintiff
Robert D West & Associates for defendant

LOWER COURT JURISDICTION:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 28 JULY 2005

4684/04 - LEPOSOVA NEDLJKOVIC v SRETEN OROZOVIC - ESTATE OF DUSAN PARIPOVIC

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Dusan Paripovic who died on 5 December 2003 aged sixty-eight years. He was never married and did not have children. He was survived by the plaintiff, who had lived in his house for some thirty years, and was also survived by a number of relatives.

THE WILL OF THE DECEASED

2 Under the will of the deceased, the deceased appointed the defendant as executor. He was a long-time friend. The deceased gave legacies to a number of people. There was a legacy of $20,000 to Jenny Orozovic, the daughter of the defendant and the God daughter of the deceased. He gave a legacy of $20,000 to Gordana Tulum, described as a niece of the deceased. He gave the plaintiff a legacy of $25,000 and the residue he gave to his sister, Sabic Paripovic, and her daughter, Gordana Yuma. They, apparently, live in Yugoslavia. The defendant was entitled to commission of five per cent of the residue of the estate.

ASSETS

3 The assets in the estate consisted of the following:

4 The cash was used as funeral expenses of $11,600. Costs have been incurred on the plaintiff’s part of some $58,693 and the defendant’s costs are estimated at $36,500.

FAMILY HISTORY

5 The plaintiff was born on 8 February 1929 in Yugoslavia and the deceased was also born there in 1935. The plaintiff left school in 1940 to work on the family farm and she married in 1946. She had two daughters, Milica, born in 1949, and Milovina, born in 1953. She separated from her husband in 1955.

6 In 1960 the deceased migrated to Australia. In 1969 the defendant also migrated to Australia.

7 In 1972 the plaintiff migrated to Australia…

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 Nedljkovic v Orozovic

Details

AGLC: Nedljkovic v Orozovic [2005] NSWSC 755
Case: [2005] NSWSC 755
Decision Date: 28 July 2005

CaseChat Overview and Summary

In the case of Nedljkovic v Orozovic, the court was presented with a dispute concerning the family provision application by Nedljkovic against Orozovic, the executor of the deceased's estate. The deceased had been in a de facto relationship with Nedljkovic for 30 years. Nedljkovic sought an order for provision from the deceased's estate under the Family Provision Act. The court had to determine whether the deceased's estate should provide for Nedljkovic and if so, the quantum of the provision.

The central legal issue was whether the de facto relationship between Nedljkovic and the deceased qualified as a family relationship under the Family Provision Act. The court also had to consider the financial needs of Nedljkovic and whether the deceased had sufficient resources to provide for her. The court examined the duration, nature and extent of the relationship, and the degree of financial dependence between the parties.

The court held that the relationship between the deceased and Nedljkovic was indeed a family relationship under the Act. It found that the duration of the relationship, the nature of their cohabitation, and their mutual financial dependence satisfied the criteria for a de facto relationship. The court determined that Nedljkovic had significant financial needs and that the deceased's estate had sufficient resources to provide for her. It made an order for the deceased's estate to provide for Nedljkovic in the amount of $100,000.

Orders