Nevenka Dmitrovic v Branka Kleut - [2024] NSWSC 1541

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nevenka Dmitrovic v Branka Kleut [2024] NSWSC 1541
Hearing dates: 24–26 June 2024
Date of orders: 03 December 2024
Decision date: 03 December 2024
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: McGrath J
Decision:
1. The cross-claim filed 5 December 2022 is dismissed.
2. Judgment for the plaintiffs against the defendant for possession of the whole of the land known as XX Cowper Street, Randwick, New South Wales, being the whole of the land comprised in certificate of title folio identifier 1/81492 (Property).
3. Plaintiffs granted leave to issue a writ of possession in relation to the Property.

Catchwords:
ESTOPPEL — equitable estoppel — proprietary estoppel — estoppel by representation — where plaintiffs/cross-defendants and mother owned family property as tenants in common in unequal proportions — where defendant/cross-claimant permitted to occupy the property for an extended period of time without paying rent — alleged representations by first plaintiff/cross-defendant to defendant/cross-claimant of right of sole occupancy of studio on non-subdivided property — alleged promise by mother to bequeath defendant/cross-claimant one-third of mother’s share in the property — findings of fact that form of studio representations made but mother’s promise not — asserted acts of reliance including remaining at the family property instead of moving into properties owned by defendant/cross-claimant at different times — lack of detrimental reliance in circumstances where defendant/cross-claimant benefitted financially and otherwise from purported acts of reliance and insufficient evidence that those acts were done in reliance on studio representations as opposed to expectation of ongoing tenancy at will — lack of unconscionability — HELD — no estoppel arising in favour of defendant/cross-claimant
SUCCESSION — family provision — claim by adult daughter for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — application made out of time — significant and largely unexplained delay — mere change of mind insufficient — where beneficiaries would be materially and substantially prejudiced by the delay — sufficient cause not shown — where estate already distributed — notional estate —where order designating family property as notional estate needed to give effect to any provision made — where such order would disrupt reasonable expectations of registered proprietors and deceased and occasion substantial injustice — no “other special circumstances” for the purposes of s 90(2)(b) established — consideration of general s 60(2) matters including applicant’s financial circumstances and deceased’s testamentary intentions — where applicant owns unencumbered property — no evidence or assertion of future needs or material dependency on the deceased — HELD — application for extension of time refused — notional estate order and family provision order would also be refused
LAND LAW — possession of land — possession sought by registered proprietors from tenant at will —no defence to claim for possession — judgment for possession

Legislation Cited:
Evidence Act 1995 (Cth) s 38
Family Provision Act 1982 (NSW) s 28
Succession Act 2006 (NSW) Ch 3

Cases Cited:
Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277
Anderson v Yongpairojwong [2023] NSWSC 1359
Baker v Baker [2024] NSWSC 559
Blore v Lang (1960) 104 CLR 124; [1960] HCA 73
Camernik v Reholc [2012] NSWSC 1537
Campbell v Chabert-McKay [2010] NSWSC 859
Charnock v Handley [2011] NSWSC 1408
Chu v Ngar [2015] NSWSC 1505
Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55
Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599
Evans v Evans [2011] NSWCA 92
Foley v Foley [2008] NSWSC 233
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Galaxidis v Galaxidis [2004] NSWCA 111
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Graham v Vukic [2020] NSWSC 1801
Hampson v Hampson [2010] NSWCA 359
Henry v Hancock [2016] NSWSC 71
Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
John v John; John v John [2010] NSWSC 937
Kastrounis v Foundouradakis [2012] NSWSC 264
Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146
Manning v Matsen [2015] NSWSC 1801
Moore v Randall& Anor [2012] NSWSC 184
Morgan v Black [2023] NSWSC 1073
Petschelt v Petschelt [2002] NSWSC 706
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Pirrottina v Pirrottina [2024] NSWSC 558
Purnell v Tindale [2020] NSWSC 746
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slade v Brose [2024] NSWCA 197
Smith v Johnson [2015] NSWCA 297
Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332
Standard Chartered Bank Aust Ltd v Bank of China (1991) 23 NSWLR 164
Stone v Stone [2016] NSWSC 605
Sullivan v Sullivan [2006] NSWCA 312
Taylor v Farrugia [2009] NSWSC 801
Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572
Thorner v Major [2009] UKHL 18; 3 All ER 945
Touma v Highfields Australia Pty Ltd [2024] NSWCA 160
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron [2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603
Watson v Foxman (1995) 49 NSWLR 315
WhiteConstructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Zirkler v McKinnon [2002] NSWSC 285

Category: Principal judgment
Parties: Nevenka Dmitrovic (First Plaintiff/First Cross-Defendant)
Veselinka Dmitrovic-Gregory (Second Plaintiff/Second Cross-Defendant)
Branka Kleut (Defendant/Cross-Claimant)
Nevenka Dmitrovic trading as Executrix of the Estate of the late Zora Dmitrovic (Third Cross-Defendant)
Representation:
Counsel:
D Price (Plaintiffs/Cross-Defendants)
T Morahan (Defendant/Cross-Claimant)
Solicitors:
Adams & Co Lawyers (Plaintiffs/Cross-Defendants)
Lang Noonan Legal (Defendant/Cross-Claimant)

File Number(s): 2022/00329452
Publication restriction: Nil

TABLE OF CONTENTS

JUDGMENT

INTRODUCTION
RELEVANT FACTS
Witnesses at the hearing
General observations and credibility of witnesses
Underlying basal facts
1983 dispute: Avoca Street property
Cowper Street property
Purchase of the Clovelly Road property by Branka
Zora’s earlier will
Zora travels overseas
Sale of the Clovelly Road property by Branka
Circumstances surrounding the occupation of the Cowper Street property by Branka and Goran from late 2000/early 2001
Purchase of Dutruc Street property by Branka
Zora returns home
Branka — provision of care and assistance to Zora
Renovations of Unit 2 at the Cowper Street property
Renovations of Unit 3 (and generally) at the Cowper Street property
Branka’s alleged intention to move into the Dutruc Street property
The Will
Purchase and sale of the Alison Road property by Branka
Sale of the Dutruc Street property by Branka, purchase of the King Street property by Branka and Goran moves into the King Street property
Branka’s alleged intention to move into the King Street property
Nevenka’s first alleged studio representation
Zora’s alleged promise
Development approval for the studio is obtained
Construction of the studio
Purchase of the Don Juan Avenue property by Branka
Occupation certificate for the studio obtained
Branka moves into the studio
Branka’s contributions to maintenance and upkeep of the Cowper Street property and renovations of the Cowper Street property
Sale of the King Street property by Branka
Renovations of Unit 1
Unit 3: Further renovations
Zora’s declining health
Branka moves into Nevenka’s guest bedroom in Unit 1
Zora’s death and Nevenka’s second alleged studio representation
Probate granted and administration of Zora’s estate
Goran and family move into the studio and sale of the Don Juan Avenue property
Purchase of the Prince Street property
Nevenka’s ill-health, conflict between Branka and Nevenka and Nevenka's third alleged studio representation
Prince Street property renovations and Goran and family move into the Prince Street property
Dispute between Nevenka and Branka and Branka moves back into the studio
Exchanges between Branka and Veselinka about Zora’s alleged promise
First request for Branka to vacate the Cowper Street property — letter of demand dated 14 June 2021
Renovations of Units 2 and 3
Nevenka issues termination notice
NSW Civil and Administrative Tribunal proceedings
Branka obtains a copy of the probate of the Will
Further request for Branka to vacate the Cowper Street property
Present proceedings
Nevenka’s expenditure on renovations of the Cowper Street property
Cowper Street property valuation
Prince Street property valuation
Employment status and financial circumstances of Branka, Nevenka and Veselinka
Branka
Nevenka
Veselinka

ISSUE 1: PROPRIETARY ESTOPPEL
Legal principles
General principles
Representation
Reliance
Detriment
Unconscionability

Submissions
Branka
Representations
Reliance
Detriment
Unconscionability
Nevenka and Veselinka
Representations
Reliance
Detriment
Unconscionability

Consideration
Representations
Reliance
Detriment and unconscionability

ISSUE 2: EXTENSION OF TIME FOR FAMILY PROVISION CLAIM
Legal principles
Submissions
Branka
Nevenka and Veselinka

Consideration

ISSUE 3: NOTIONAL ESTATE ORDER
Legal principles
Submissions
Branka
Nevenka and Veselinka

Consideration

ISSUE 4: FAMILY PROVISION ORDER
Legal principles
Submissions
Branka
Nevenka and Veselinka

Consideration
Nature of the relationship with the deceased
Obligations of the deceased and contributions to the deceased’s estate and welfare
Nature of the estate or any property that could be designated as notional estate
Financial circumstances
Applicant’s age, disability and present and future needs
Deceased’s testamentary intentions
Conclusion

ISSUE 5: POSSESSION
COSTS
ORDERS

JUDGMENT

INTRODUCTION

This is an application by two sisters, Nevenka Dmitrovic and Veselinka Dmitrovic-Gregory, against their other sister, Branka Kleut. In this judgment, I will refer to each of the three sisters and relevant family members by their first names without intending any overfamiliarity or disrespect.
By their application, Nevenka and Veselinka seek possession of parts of the land at a property at XX Cowper Street, Randwick, New South Wales (Cowper Street property) as the registered proprietors of the Cowper Street property, as well as damages and/or equitable compensation. Branka presently resides in a studio on the Cowper Street property and has occupied different parts of the Cowper Street property at various points in time since approximately 2001.
Branka has made a cross-claim in these proceedings, principally seeking:

a declaration that Nevenka and Veselinka hold part of their interest in the Cowper Street property on trust for her by reason of a proprietary estoppel in her favour; and

an extension of time for the making of an application for a family provision order under the Succession Act 2006 (NSW), and the making of such an order in her favour, for provision out of the estate or notional estate of the late Zora Dmitrovic, the mother of Nevenka, Branka and Veselinka.

The proceedings were originally commenced in the Common Law Division of this court. By reason of Branka’s claim for a family provision order, the proceedings were transferred to the Equity Division (Succession and Probate List, now referred to as the Probate and Family Provision List) on 26 May 2023.
The main issues to be determined in these proceedings are:

Whether Nevenka and Veselinka are estopped from denying that Branka has an interest in the Cowper Street property by virtue of representations alleged to have been made to Branka by Nevenka and Zora about which Veselinka knew and assented.

Whether an extension of time to bring the family provision claim should be granted to Branka.

Whether a notional estate order should be made, the administration of Zora’s estate having already been completed.

Whether there are grounds to make a family provision order in Branka’s favour.

Whether an order for possession should be made in favour of Nevenka and Veselinka against Branka.

At the hearing, Mr D Price appeared for Nevenka and Veselinka, instructed by Adams & Co Lawyers. Mr T Morahan appeared for Branka, instructed by Lang Noonan Legal. In making closing submissions, neither counsel had access to the transcript of the oral evidence given at the hearing. In considering those submissions, I have made allowance for that fact.

RELEVANT FACTS

Witnesses at the hearing

At the hearing, Nevenka and Veselinka were the principal witnesses in their own cases, each making multiple affidavits and being cross-examined. They also relied on an affidavit of costs affirmed by Sidney Barton Adams, who was not cross-examined.
At the hearing, Branka appeared as a witness in her own case. The other witnesses on whom Branka relied were her son, Goran Kleut, as well as a friend of Branka, Lisa Kathryn Colnan, and a former tenant of one of the units in the Cowper Street property, Kim Meddows. Each of Branka, Goran, Ms Colnan and Ms Meddows were cross-examined. Branka also relied on an affidavit of costs sworn by William Joseph Brett Noonan, who was not cross-examined.

General observations and credibility of witnesses

At the outset, I note that various conversations and events (and the order of those events) relevant to the issues arising for determination in these proceedings are disputed between the parties — on occasion, vehemently so and at considerable odds from each other’s versions.
In every instance, I have endeavoured to evaluate each witness’s evidence, not only in the light of their responses in the course of cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events and probabilities of human behaviour, the existence and nature of corroborative evidence, and the effect and impression given by the evidence as a whole.
This is in line with the appropriate approach to be taken by a trial judge in assessing the reliability of evidence given by witnesses in the course of trial proceedings. Among the principles that guide this undertaking are the following:

In circumstances where events have taken place long ago, the orthodox and sensible approach for a trial judge to take in assessing the credibility and reliability of the evidence of a witness about those events is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, Gleeson CJ, Gaudron, Kirby and Hayne JJ at [15]–[16].

Scientific research has cast doubt on the ability of a trial judge to tell truth from falsehood accurately based on the appearance of witnesses such that trial judges should limit their reliance on the appearances of witnesses and develop their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ at [30]–[31].

There are multiple problems with a trial judge making demeanour findings, ranging from systematic error or bias, memory malfunctions, the possibility that witnesses may be dishonest about only parts of their evidence, that a truthful witness may give accurate or inaccurate testimony and that a dishonest witness may appear to be truthful. A trial judge should keep in mind the guidance provided in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 by Ipp JA (with whom Mason P and Tobias JA agreed) who said at [27]:

These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge's reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.

A trial judge should exercise restraint when forming a view about the credibility of a witness based on demeanour in giving evidence because it is a stressful and unfamiliar experience for most people, and particular care must be exercised in making demeanour findings where a witness is from a different cultural and ethnic background to that with which the trial judge is familiar: Goodrich, Ipp JA at [21]. As observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140, by Atkin LJ at 152 (cited in Fox v Percy at [30]):

… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

The assessment of the credibility of a witness is a larger concept than demeanour and the latter is not to be overemphasised: White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277, Bell P (as the Chief Justice then was) at [106] citing Goodrich at [16]–[27] (White JA agreeing generally at [154]–[156]); Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277, Bell CJ (Ward P and Macfarlan JA agreeing) at [102]–[103], citing White and Goodrich.

It is important to bear in mind that the ordinary human experience of a witness makes their memory of conversations fallible, as eloquently stated in the following oft-cited passage in Watson v Foxman (1995) 49 NSWLR 315, by McLelland CJ in Eq at 319 (recently approved in Touma v Highfields Australia Pty Ltd [2024] NSWCA 160, Basten AJA at [18] (White and Adamson JJA agreeing):

… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

In terms of the credibility of each of Nevenka, Veselinka and Branka as witnesses, bearing in mind the foregoing principles, I am inclined to make the following general remarks:

Nevenka tended towards an extreme version of events, and an extreme position in refuting Branka’s account of relevant events. This sometimes-excessive contrariety was demonstrable in Nevenka’s evidence as to Branka’s involvement in and contributions to, for example, renovations and maintenance of the Cowper Street property and provision of care and assistance to Zora while she (Branka) was living at the Cowper Street property. Nevenka’s contrariety, in circumstances where the evidence given by Ms Colnan and Ms Meddows at least partially corroborated Branka’s account of her involvement at various points in the renovations of parts of the Cowper Street property, tends to undermine Nevenka’s credit with respect to these matters and generally.

Also detracting from Nevenka’s credibility is the inconsistency between the evidence given by her in these proceedings and the construction of the facts advanced on her behalf by solicitors instructed to act for her and Veselinka in earlier related proceedings against Branka in the New South Wales Civil and Administrative Tribunal (NCAT) in 2022. The central discrepancy between these accounts concerns the circumstances under which Branka came to be living in their mother’s unit from early 2001 and later the studio at the Cowper Street property, and whether that arrangement arose pursuant to an express (verbal) agreement that Branka would provide carer services to Zora and assist with the general upkeep of the Cowper Street property. These matters, on which Nevenka was cross-examined at length (see, for instance, T95–104), are discussed below.

Veselinka likewise adopted an extreme version of events that was largely consistent with that given by Nevenka, who appeared to be the more dominant of the two sisters. Veselinka was circumspect in her responses to questions put to her in cross-examination and, as with Nevenka, when presented with documentary evidence of representations previously made by her that ran counter to her evidence in these proceedings, characterised those earlier representations as incorrect, while maintaining that her current evidence was truthful (T120–126).

During cross-examination, when questioned over her failure to produce a document that she referred to which was not in evidence and was the subject of a call by the defendant (T143–144), Veselinka was visibly distressed and confused. I do not consider that this undermines her credibility in any meaningful way and would prefer to give her the benefit of the doubt, noting that giving evidence can be a stressful and disorienting experience for many people unfamiliar with court processes and the adversarial tactics that are brought to bear in litigation.

Turning to Branka, I consider that she did not respond reasonably or honestly to a number of questions and propositions put to her in cross-examination. This was particularly so on the topic of the advantages, financial and otherwise, that she derived from living rent-free at the Cowper Street property over the period beginning in 2001 and running up until the present moment. I consider that this diminishes her credibility in relation to her evidence, both on those discrete matters and generally.

As a result of these general impressions formed by me, I have attempted, wherever possible, to anchor the following chronology in objectively established or corroborated facts and contemporaneous documents as opposed to the written or oral evidence given by any one party or witness in the proceedings.
In certain instances below, I have recorded the disparity in the versions given by the respective witnesses in their evidence about the same set of events. For many of those conflicting versions it is not necessary to resolve that disparity but where an event is central to the claims which are made in the proceedings, I have made findings about that event either at the point at which I have narrated the event or in my consideration of the different submissions made in relation to it.

Underlying basal facts

Nevenka, Branka and Veselinka are sisters and the daughters of Zora. Goran is Branka’s son and Zora’s grandson.
Nevenka is 74 years of age, Branka is 71 years of age and Veselinka is 68 years of age. Goran is 49 years of age. Zora died on 15 April 2017, aged 90 years.
Zora died leaving a will dated 29 June 2004 (Will), under which Nevenka was appointed executrix and trustee. By the Will, Zora devised the whole of her estate to Nevenka, on trust, to be liquidated with the proceeds to be used to pay out all liabilities of the estate and the balance to go to Nevenka.
On 20 October 2017, probate of the Will was granted to Nevenka.
On 22 August 2018, the administration of Zora’s estate was completed.

1983 dispute: Avoca Street property

At some point prior to October 1983, Zora, Nevenka, Branka and Veselinka jointly purchased a three-bedroom unit at Avoca Street Randwick, New South Wales (Avoca Street property).
For a period of years, the Avoca Street property served as the home of Zora, Nevenka and Veselinka. Throughout that period, Branka lived elsewhere with Goran, who was a child at that time.
In 1983, a dispute in respect of the Avoca Street property arose between Branka on the one hand and Nevenka, Veselinka and Zora on the other.
On 5 October 1983, the solicitors then acting for Branka, Hunt & Hunt Solicitors, sent a letter to Zora, Nevenka and Veselinka in relation to that dispute. Hunt & Hunt proposed that Branka be paid out of her share in the Avoca Street property and an agreement entered into in the following terms:

1.    Branka to receive $3,201.00.
2.   [Zora], Veselinka and Nevenka to acquire Branka’s interest in the [Avoca Street] property.
3.    [Zora], Veselinka and Nevenka to pay stamp duty and valuation fee.
4.   [Hunt & Hunt’s] legal fees to be divided four ways.

The evidence before me does not disclose whether a transaction in these terms was actually entered into, then or subsequently. I understand, however, that the Avoca Street property was the predecessor family property to the Cowper Street property and have inferred that it was sold sometime between October 1983 and 1988.

Cowper Street property

In 1988, Zora, Nevenka and Veselinka acquired the Cowper Street property as tenants-in-common in the following shares:

Zora — 37.5% (three-eighths share).

Nevenka —37.5% (three-eighths share).

Veselinka — 25% (one-quarter share).

At the time of purchase, the Cowper Street property consisted of three units, with each unit containing two bedrooms, a kitchen and a bathroom, as well as a shared laundry and a separate garage.
Initially, Nevenka occupied Unit 1, Veselinka occupied Unit 2 and Zora occupied Unit 3, and each of them were regarded as “owning” the unit they occupied.
Veselinka later rented out Unit 2 after she moved to Quandialla in the Central West region of New South Wales and took up residence with her husband at a farm property known as Kilmarnock. From that time, Unit 2 was tenanted with the rent paid to Veselinka, including by:

Two brothers, Patrick Kerlin and Daniel Kerlin, from April 1999 to April 2002; and

Kim Meddows from about 2006 to 2021. The evidence before me indicates that Ms Meddows occupied Unit 2 in the Cowper Street property from anywhere between January 2004 (according to Nevenka) and 2007 (according to Ms Meddows) up until 2021.

Over the years, building works were carried out at the Cowper Street property at various times, including as follows:

In 1992, the existing garage was removed and four garages and a workroom constructed in its place.

In late 1997 or early 1998, Unit 2 was renovated. Further renovations to Unit 2 were carried out in 2022.

In late 1997 and again in 2010 and between 2021 and 2022, Unit 3 was renovated.

In 2008, a studio was constructed above the garages. The construction and fitting out of the studio took place between 2008 and 2010.

In 2010, a top floor was added to Unit 1.

Purchase of the Clovelly Road property by Branka

On 10 February 1988, Branka purchased a unit at Clovelly Road, Randwick, New South Wales (Clovelly Road property) for $110,000.
Branka and Goran moved into and lived at the Clovelly Road property until late 2000 or early 2001.

Zora’s earlier will

On 8 February 1989, Zora executed a will (earlier will) under which Nevenka and Veselinka were appointed executrices.
By the earlier will, Zora devised and bequeathed any motor vehicle owned by her at the time of her death to Goran, and the residue of her estate to Nevenka and Veselinka in equal shares.

Zora travels overseas

In June 2000, Zora left Australia to travel and spend time overseas in the former Yugoslavia and parts of Europe. At that time, in the absence of Zora, Unit 3 at the Cowper Street property became vacant.

Sale of the Clovelly Road property by Branka

In 2000, Branka decided to renovate and sell the Clovelly Road property.
In late 2000 or early 2001, Branka and Goran moved out of the Clovelly Road property to allow renovations and preparations for the sale of the property to proceed. At this time, Branka and Goran (who was then 25 years old and studying), at the invitation or suggestion of Zora and/or Nevenka, moved in to the Cowper Street property. The circumstances whereby Branka and Goran came to be living at the Cowper Street property on this occasion are contested (a matter which I have dealt with in more detail below).
In late 2000, Nevenka assisted Branka with renovations of the Clovelly Road property at no cost to Branka. Branka conceded in cross-examination that Nevenka assisted her with the renovations “[o]ut of the goodness of her heart”, because she was being a “good sister” (T20–21).
On 28 March 2001, Branka sold the Clovelly Road property for $320,000, $210,000 more than the $110,000 she had paid for it in 1988.

Circumstances surrounding the occupation of the Cowper Street property by Branka and Goran from late 2000/early 2001

Branka says that in December 2000 she moved into her mother’s second bedroom in Unit 3, and Goran moved into the studio or workroom at the Cowper Street property, using Unit 3 as his base. Nevenka says this occurred in February 2001. There does not appear to be a material difference between these dates so it is not necessary to resolve that issue.
According to Branka, the reason that she and Goran moved into the Cowper Street property was that when she told Zora they would not have anywhere to live when the Clovelly Road property was sold, Zora responded by saying “[y]ou can come and live with me and Goran can stay in the workroom”. Branka says that this exchange occurred over the telephone, Zora being overseas at the time.
This is disputed by Nevenka, who says that she herself offered for Branka to move in to Unit 3 during a conversation between them that occurred in early 2001. Nevenka says that when Branka expressed a desire to renovate and sell the Clovelly Road property before purchasing a new property, Nevenka suggested to Branka that she could stay in Unit 3 while Zora was overseas, noting that Branka could complete the renovations of the Clovelly Road property and find a new property to move into before Zora’s return. Branka denies that a conversation of this description took place.
Nevenka says that shortly after this conversation with Branka, she spoke to Zora over the phone, stating that she had told Branka to move into Unit 3 while Zora was overseas, citing Branka’s plans to renovate and sell the Clovelly Road property before buying a new unit with a garage. Nevenka says that Zora responded by saying, “[d]o as you think is best.”
In her evidence, Branka stated that she was not aware of this conversation between her mother and her sister, and denied that Nevenka was responsible for any arrangement for her to move in with Zora at the Cowper Street property. In cross-examination, however, when it was put to Branka that the invitation to move in to Unit 3 at this time came from both Zora and Nevenka, she was less categorical in her denial (T20):

Q. I suggest to you that the invitation was made to you by Nevenka. Do you agree with that?
A. No, by Mum.
Q. I suggest to you that it was also made to you by Nevenka.
A. By Mum and, do I say, Nevenka as well, because I spoke with Mum over the telephone.

In all the circumstances, I consider that Branka and Goran came to be living at the Cowper Street property in late 2000/early 2001 by invitation (or at the very least with the consent) of both Nevenka and Zora. I consider that this was an informal arrangement that made sense in the context of their family relationships at that time (whereby Nevenka was happy to assist Branka, for instance, with preparing the Clovelly Road property for sale without any expectation of payment), and which was an instance of Branka’s mother and older sister helping her out financially.

Purchase of Dutruc Street property by Branka

On 21 February 2001, Branka purchased a three-bedroom unit at Dutruc Street, Randwick, New South Wales (Dutruc Street property) for $400,000.
Branka used the Dutruc Street property exclusively as an investment property; the evidence before me is that neither she nor Goran ever lived in the Dutruc Streety property. Branka continued to live in Zora’s guest bedroom in Unit 3 of the Cowper Street property for the whole of the period that she owned the Dutruc Street property (between February 2001 and August 2006). Neither she nor Goran paid rent to Zora, Nevenka or Veselinka as the owners of the Cowper Street property during that time.
Nevenka gave evidence, and Branka agreed in cross-examination (T22), that rental payments collected from tenants of the Dutruc Street property were used to pay off the mortgage over that property.

Zora returns home

On 20 April 2001, Zora returned to Australia from overseas.
At this time, Zora moved back in to Unit 3 on the Cowper Street property, where Branka was living in Zora’s second bedroom.

Branka — provision of care and assistance to Zora

Branka asserts that during the time she and Zora were occupying Unit 3 together (between April 2001 and January 2009), and at all times Branka was living at the Cowper Street property for the period that Zora was alive, she supported Zora emotionally and in her day-to-day activities.
In cross-examination, Branka stated that as at 2005 (T26):

A. [Zora] was getting weak, let’s put it that way, because she was already 70 years old.
Q. She [Zora] didn’t require assistance from anyone at that stage, did she?
A. She required assistance, you know, in housework.
Q. I suggest to you that —
A. Going shopping because she stopped driving the car at the age of 70 already. When I asked her, “Why did you stop, mum? Why didn’t you continue driving?”, she said, “I don’t feel confident”. So, yes, she did require assistance.

In cross-examination, Goran described the state of Zora’s health and care needs as at 2006 as follows (T54):

Q. Now, in 2006, your grandmother was still living quite independently, wasn’t she?
A. What do you mean by “independently”?
Q. She didn’t need a carer, did she?
A. She didn’t need a carer at that time, no.
Q. And she didn’t require assistance with her activities of daily life?
A. Yes, she did.
Q. She did, did she?
A. Yeah.
Q. And in what way did she require that assistance?
A. She needed assistance walking and getting around. She needed lifts. I would go to the shops for her, all sorts of assistance. She was old.

Both Nevenka and Veselinka deny that Branka assisted Zora during the period from 2000 to Zora’s death in 2017. Nevenka gave evidence that prior to 2010 (when Zora became ill), Zora did not require assistance from anyone and did her own shopping, cleaning and cooking.
I am of the view that while living at the Cowper Street property during the relevant period, Branka likely assisted her mother in various ways. This may well have included driving her to the shops and assisting her with housework. In all likelihood, and having regard to the surrounding circumstances, I consider that Zora’s need for care and Branka’s contribution to Zora’s care was modest. I do not accept the evidence of Nevenka and Veselinka that their mother was entirely self-sufficient and received no assistance from Branka while they were living together in Unit 3. Nor am I persuaded by Branka’s depiction of Zora’s infirmity and frailty, which appears to be overstated. With regard to Goran’s evidence of the same events, I am mindful that his natural tendency in these proceedings was to align his evidence with that of his mother, Branka.
I also consider that the parties’ recollections, and in turn their respective accounts, of this matter are coloured by self-interest, resentment and acrimony. I am mindful not to permit that acrimony and antagonism to contaminate my findings here, in circumstances where the family relationships do appear at intermittent times to have been positive, functional and cooperative, involving some degree of mutual love and affection that guided their interactions and dealings with each other.

Renovations of Unit 2 at the Cowper Street property

According to Branka, shortly after moving in to Unit 3 at the Cowper Street property, the following sequence of events took place:

Unit 2 (the unit “owned” by Veselinka) became vacant.

Nevenka asked Branka if she would help with renovating Veselinka’s unit.

Branka agreed to assist with renovating Unit 2.

Nevenka and Branka proceeded to demolish the existing kitchen in Unit 2 and install a new kitchen, replace the cupboards, paint Unit 2 and engage tradespeople to perform electrical and plumbing work in Unit 2.

These renovations were done to prepare Unit 2 for a new tenant.

In cross-examination, Branka was unable to give an exact date or date range (including the year) within which the above conversation with Nevenka or the Unit 2 renovations themselves occurred. She instead asserted that her recollection was tied to other events, maintaining that Unit 2 was renovated prior to Ms Meddows moving in to and occupying Unit 2 as a tenant (T17–18). The evidence before me is that Ms Meddows moved in to Unit 2 at the very earliest in January 2004, and the previous tenancy of the Kerlin brothers had ended in April 2002. On Branka’s version of events, this would place the renovations of Unit 2 sometime between April 2002 and January 2004.
Both Nevenka and Veselinka deny that Branka assisted in the renovation of Unit 2 when she moved in with Zora. According to Nevenka and Veselinka, the relevant Unit 2 renovations predated Branka moving in to Unit 3 on the Cowper Street property. Veselinka states that Unit 2 was occupied by two brothers (presumably referring to the Kerlin brothers) at the time Branka moved in to Unit 3, and that the two brothers rented Unit 2 between April 1999 and April 2002. Nevenka states that Unit 2 was renovated in or around late 1997 or early 1998, before Branka moved in to Unit 3 (in late 2000 or early 2001).
No evidence (documentary or otherwise) capable of demonstrating conclusively the dates and durations of the tenancies at Unit 2 was put before me. Nor was I presented with documentation to verify the dates or date range during which renovations of Unit 2 were carried out. I am therefore deprived of a fairly straightforward means of testing the veracity of the evidence given by each of Branka and Nevenka and Veselinka on this matter.
I have made findings below in relation to Branka’s assertions that she contributed and assisted with renovations of the different units on the Cowper Street property at various points in time.

Renovations of Unit 3 (and generally) at the Cowper Street property

According to Branka, upon completing the renovations to Unit 2, she and Nevenka proceeded to renovate Unit 3 (their mother’s unit). Branka states that this work consisted of laying cork tiles in the kitchen, tiling the laundry, sanding and polishing the timber floors, and painting the walls in Unit 3. Branka says that she and Zora continued to live in Unit 3 while these renovations were underway.
In cross-examination, Branka was again unable to give an exact date or date range (including the year) within which these renovations occurred, but said that she and Nevenka conducted renovations to Unit 3 on two separate occasions (T22).
Nevenka and Veselinka categorically deny that Branka was involved in any of the renovations to the units at the Cowper Street property. Moreover, in response to Branka’s evidence, Nevenka states that Unit 3 was in fact renovated in late 1997 and again in 2010. For her part, Veselinka states that she and Nevenka employed tradespeople to carry out renovations at the property well before Branka began living in Unit 3.
In this connection, Veselinka gave evidence relating to the state of Branka’s physical health (and, by implication, her capacity to assist with renovations) in or around 2001. Veselinka says that around the time Branka moved in to Unit 3 at the Cowper Street property, Branka (who at that stage was working full-time) told Veselinka that she was unwell, suffering from emphysema, lupus and Sjogren’s disease, and constantly tired, out of breath and struggling to work. This evidence from Veselinka is neither corroborated nor directly contradicted; however, Branka, at one point in cross-examination, seemed to develop something of a counternarrative, suggesting that her staying at the Cowper Street property was to the advantage of her family precisely because of her capacity for physical labour, her strength and her health (T23).

Goran gave evidence that while he was living at the Cowper Street property between approximately 2001 and August 2006, he witnessed Branka and Nevenka working on the Cowper Street property on multiple occasions. This included, he says, attending to maintenance and numerous jobs in Unit 3 as well as renovations to Nevenka’s unit, Unit 1.
Nevenka denies that she and Branka worked on the Cowper Street property together, and denies that Unit 1 was renovated during this time. Veselinka also denies that Branka renovated or assisted with the renovation of Unit 1 during this period.
The evidence of other witnesses as to Branka’s involvement in or contribution to renovations and building work at the Cowper Street property at various times is addressed below. As will become apparent, I have found that Branka had some level of involvement in and did contribute to renovations and building work at the Cowper Street property over the years.

Branka’s alleged intention to move into the Dutruc Street property

According to Branka, when the renovations of Unit 3 were nearing completion, she intended to move out of the Cowper Street property and into the Dutruc Street property. Branka states that Zora said to her, “[w]hy can’t you stay longer? You can rent your place and be able to help Goran financially while he is studying”. Branka says that Zora was happy for Branka and Goran to stay with her and Nevenka because they lived as a family unit, got on well and supported each other.
In affidavit evidence, Branka suggested that this (the first) time Zora and Nevenka convinced her to stay living at the Cowper Street property was in 2004. In cross-examination, Branka was less certain and gave a range of possible dates between 2001 and 2006 (T23–26), noting that Goran was undertaking further study in the dramatic arts at the time (T25).
Branka was cross-examined on this aspect of her evidence, and in particular her reasons for remaining at the Cowper Street property at this time (T23). Branka maintained that Zora asked her to stay, that Zora always wanted her to stay in the family, and that it was to the family’s advantage that she stayed:

Q. You say that your mother said to you, “Why can’t you stay longer?”
A. Yes, Mum always wanted me to stay in the family.
Q. She said, “You can rent your place.”
A. Yes.
Q. “And be able to help Goran financially while he is studying.”
A. Yes, correct.
Q. So your mother knew that you had the apartment at Dutruc Street, did she?
A. Yes, she did.
Q. And there was no reason why you couldn’t have moved out at that time, was there?
A. No particular reason, other than, you know, being asked by Mum, you know, and yeah, that will help Goran and so on, yeah.
Q. You agreed to stay because you thought it was to your advantage to stay, didn’t you?
A. It was to my advantage, but also to the advantage of my family.
Q. So it was a double advantage to you, was it?
A. Not to me, but to the family.
Q. To you and to Goran.
A. Come on, you’re twisting it, sir. My staying there was also to the advantage of my family because I was staying there and helping them. I’ve always helped in the family and carried the biggest burden because I was the tallest and the strongest in the family, and the healthiest.

For her part, Nevenka denies that Branka was living with her as a family and that Branka was helping her, saying that they did not spend time together other than in the context of Nevenka’s visits to her mother while Branka was living in Unit 3 or when Zora later moved into Nevenka’s unit, Unit 1. Nevenka says that from 2001 to 2017 Branka and Zora hardly spoke, Branka was of the view that they had nothing to talk about, and Zora told her on one occasion that they had not spoken for a week.
Veselinka says that her observations of interactions between Zora, Nevenka and Branka were that the relationship was strained and tense, with them being short and abrupt in their discussions.
In terms of Branka’s reasons and/or motivations for remaining at the Cowper Street property at this time, Nevenka states that in or around March 2002, Branka said to her words to the effect of: “I am staying here because without the rent from Dutruc Street, I would not be able to pay my mortgage and Goran’s school fees.”
I note at this point the crystallisation of two opposing narratives, corresponding with each side’s case, to explain Branka’s ongoing occupation of the Cowper Street property. On the one hand is Branka’s “family unit” narrative, incorporating themes of harmonious cohabitation and ascribing to Zora a desire to assist Branka and Goran financially as well as a desire for Branka to be around to assist the family. On the other hand, Nevenka and Veselinka describe a breakdown of sisterly and mother-daughter relations and communication, complete dysfunctionality and general discontent, and suggest that Branka’s decision to remain living at Cowper Street was entirely mercenary, having nothing to do with Zora’s and/or Nevenka’s amenability to Branka’s ongoing occupation of the Cowper Street property pursuant to a mutually beneficial family arrangement.
Considering the inherent probabilities of the situation, I do not subscribe to either of these narratives in absolute terms. Neither scenario leaves room or accounts for inevitable flux in the family relationships. To my mind, a status quo was achieved which was to Branka’s benefit and which she was inclined to maintain whilst ever it suited her and Goran financially to do so. I consider that on this occasion she continued to live at the Cowper Street property on this basis, but not necessarily solely on this basis. Equally, I consider that she had reasons for remaining at Cowper Street that were independent of any request or invitation by Zora.
I do consider that Branka’s refusal here (and at later points) to admit that staying at the Cowper Street property was to her financial advantage reflects very poorly on her credibility as a witness. Given the obvious financial advantage she derived from living there rent-free — even if this benefit could be said to be partially offset by certain other burdens she notionally took on, such as assisting Zora — I regard her oblique and qualified answers to the proposition as disingenuous.

The Will

On 29 June 2004, Zora executed the Will. The Will is in the following terms:

1   I HEREBY REVOKE all former wills and testamentary dispositions heretofore made by me and declare this to be my last Will and Testament.
2    I APPOINT my daughter NEVENKA DMITROVIC (hereinafter called my “Trustee”) Executrix and Trustee of this my Will PROVIDED HOWEVER in the event that the said NEVENKA DMITROVIC shall be unable or unwilling to be my Trustee then I APPOINT my daughter BRANKA KLEUT Executrix and Trustee of this my Will in her place.
3   I GIVE DEVISE AND BEQUEATH the whole of my estate and property both real and personal of whatsoever kind and wheresoever situate unto my Trustee UPON TRUST to sell call in and convert into money such part or parts thereof as may not consist of money and TO HOLD the net proceeds of such sale calling in and conversion together with such part or parts of my estate and property as aforesaid as may consist of money or may for the time being remain unconverted upon the following further trusts namely:
3.1   To pay thereout all my just debts funeral and testamentary expenses including all probate death and estate duties of whatsoever kind which may be payable in my estate or in any way in consequence of my death.
3.2    To pay the balance then remaining unto my daughter NEVENKA DMITROVIC.

…

I consider that nothing turns on the appointment of Branka as an alternative executrix and trustee in the Will if Nevenka was unable or unwilling to perform those roles.

Purchase and sale of the Alison Road property by Branka

On 1 May 2005, Branka purchased a studio apartment at Alison Road, Kensington, New South Wales (Alison Road property) for $185,000.
Neither Branka nor Goran ever lived at the Alison Road property. I infer from this that it was used solely as an investment property.
On 13 October 2006, Branka sold the Alison Road property for $200,000, $15,000 more than the $185,000 she paid for it in May 2005.

Sale of the Dutruc Street property by Branka, purchase of the King Street property by Branka and Goran moves into the King Street property

On 15 August 2006, Branka sold the Dutruc Street property for $600,000, $200,000 more than the $400,000 she paid for it in February 2001. That same day, Branka purchased a two-bedroom unit at King Street, Randwick, New South Wales (King Street property) for $435,000.
According to Goran, Branka purchased the King Street property for him to live in and he moved out of the Cowper Street property and into the King Street property sometime after it was purchased.
Under cross-examination, Goran gave evidence that while he was living at the King Street property he paid rent to Branka over a discrete period of three months, and after that and otherwise only assisted his mother however and whenever he could (T58):

Q. Whilst you were living at King Street Randwick, did you pay any rents to your mother?
A. King Street, there was a period where me and a friend of mine were there, we were paying rent. He moved out about three months later, and then I’d assist with my mum however I can. We didn’t have a rent per se agreement, but, yeah.

Branka’s alleged intention to move into the King Street property

According to Branka, she intended to move into the King Street property along with Goran after purchasing it in August 2006, but Zora and Nevenka said they wanted her to continue to stay and live with them. Branka says that the three of them had the following exchange, which Nevenka denies:

Branka:   I am not going to live in mum’s second bedroom and I have all my furniture stored in the garage.
Nevenka:   [W]hy don’t you let Goran move out and into the unit, and you stay here living with us?
Branka:    No, it is time for me to move out and live independently again.
Zora:         [N]o, we get on so well, you must stay here with us.
Nevenka:   I want you to stay and help me look after mum. You should let Goran get more independent and you can stay and help us. We are two lonely women living in this large house by ourselves.
Nevenka/Zora:    We would feel more secure with you living here and you can help us.

Goran says that around this time, Branka discussed with him her decision to move out of the Cowper Street property and into a place of her own. Goran also says that he visited the Cowper Street property regularly after moving out and Zora, Nevenka and Branka all appeared to get on very well together and lived as a family. For her part, Nevenka denies that Goran visited regularly after moving out.
Nevenka agrees that shortly after Branka purchased the King Street property Branka expressed an intention to move out of the Cowper Street property and into the King Street property, but says that a few weeks later, Branka said to her words to the effect of, “I will stay longer to save more money, I don’t want to pay a mortgage all my life.”
Branka also says that Zora and Nevenka made her feel guilty for wanting to move away, and that they had the following exchange, which Nevenka also denies:

Nevenka and Zora: We will feel more secure if you were here and it will help Goran independently.
Nevenka: You can help me looking after mum, she is getting older and will need looking after.

All of this is contested by Nevenka and Veselinka. Nevenka says that in 2006, Zora lived independently and did not require anyone to look after her. Veselinka says that Zora did not have any health issues or require care at that time. Up until 2010, Nevenka says that Zora did not require assistance as she did her own shopping, cleaning and cooking and she regularly socialised with friends and family.
As detailed above, Goran’s evidence is that in 2006, Zora’s mobility was somewhat impaired and she needed assistance including lifts to and from the shops (T54).
The evidence given by the parties here works to continue reinforcing the respective opposing narratives adopted by each side, which I have referred to above. To my mind, the likelihood is that the truth lies somewhere in between; that is, Branka wished to stay living at the Cowper Street property because of the advantages to herself and Goran, and it served the interests of Nevenka and Zora, to some extent, for Branka to be available from time to time to assist Zora modestly as she grew older. On balance, I find that the suggestion and/or proposal that Branka remain living at the Cowper Street property came from Zora, Nevenka did not disagree with it, and Branka readily adopted it because she could see how it would benefit herself and Goran.

Nevenka’s first alleged studio representation

Around this time, Branka says that she articulated to Nevenka a disinclination to continue staying in Zora’s second bedroom in Unit 3 with her furniture in the garage. Branka says that she and Nevenka proceeded to have the following exchange:

Nevenka:   I will build a studio over the garage and you can live there. It will be more comfortable for you.
Branka:   Why would you want to do that?
Nevenka:    So that you will agree to stay and live with us.

(Nevenka’s first alleged studio representation)

Nevenka denies that an exchange along these lines ever took place. She was not challenged on this denial in the course of cross-examination.
Branka suggests that Nevenka’s offer to build the studio above the garages at the Cowper Street property was made as an “inducement” for Branka to remain living at the Cowper Street property. Branka also says that around this time Nevenka told her that Branka staying with them would make them feel “more secure” (T28).
Branka was cross-examined on her evidence in relation to Nevenka’s first alleged studio representation, and the reasons she says the offer to build the studio was made (T33–34). She conceded that in 2006, she had no specific need for a studio apartment to be built for her, but stated that Nevenka made the offer because both she and Zora wanted Branka to remain living with them. Branka said that for that reason, and because they were sisters, she did not consider it “extraordinary” for Nevenka to have made that offer.
For his part, Goran gave evidence that he was present during conversations where words to the above effect (including Nevenka’s first alleged studio representation) were said. Goran also says he was present on several occasions when Zora and Nevenka discussed Branka’s desire to move out.
Goran further asserts that on several occasions he was present during conversations about the construction of a studio above the garage, which was intended to serve as Branka’s residence. Goran also says that both Zora and Nevenka said the following to him, which Nevenka denies:

We are building the studio for your mother.
This is going to be for your mother to move into so she will have a place of her own.

Goran was cross-examined on this matter, and in particular about the purpose for which the studio was being built and relevant representations alleged to have been made at this time (T55–57):

Q. In about 2006, Nevenka announced to the family that she was going to build a studio over the garages; didn’t she?
A. There was no announcement to the family as such. I was told on a number of occasions through certain people that my mum, my grandma, [Nevenka], that they were building, they were planning on doing it, the planning stages were there for a while. I even helped with some of the blueprints, yeah. I was aware that it was happening.
…
Q. You give evidence that the deceased, your grandmother, and Nevenka said to you, “This is going to be for your mother to move into, so she will have a place of her own”.
A. Yes.
Q. Well, she had a place of her own at that time; didn’t she?
A. That was supposed to be for her, the place they were making.
Q. But she didn’t need a place to move into because she had her own property [the King Street property]; did she not?
A. I was living in that property, and she needed a place to live.
Q. Well, there’s no reason that she couldn’t have lived in her property; is there?
A. Because I was there.
Q. Well, there’s no reason you could not have gone and got your own property; is there?
A. I couldn’t afford one at the time.
…
Q. I suggest that it was not said that this [the studio] was going to be for your mother to move into so she would have a place of her own.
A. You know, I would proudly say that that was built for my mum.
Q. Again, I suggest to you that, at that time, Nevenka and your grandmother both knew that your mother owned other properties and could move into those properties. Do you agree with that?
A. They knew that she owned other properties, but they wanted her close with them.

Ms Meddows gave evidence that she was informed by Nevenka that the studio was “for Branka to live in.” Nevenka denies this and says she never spoke with Ms Meddows about the Cowper Street property, other than to notify her that there would be building work on the property.
Under the heading titled “Consideration” in the section dealing with Issue 1 below, I have set out my findings in relation to whether Nevenka’s first alleged studio representation was made to Branka. In short, I have found that it was likely to have been made.

Zora’s alleged promise

According to Branka, at the time she was speaking with Nevenka about Nevenka and Zora wanting her to stay at the property, Zora was present and they had the following further exchange (Zora’s alleged promise):

Zora: You won’t have to worry about your future living arrangements because I will leave you one third of my share in the house so that you will always have somewhere to live.
Branka: Alright I will stay, if you are going to build a studio and that I will have the security knowing that I will get a part ownership of the house.

Goran says that on more than one occasion, he witnessed Zora tell Branka that she need not be concerned about her living arrangements as she would have the studio and one-third of Zora’s share of the Cowper Street property.
This is contested by Nevenka and Veselinka, who say that they never heard or observed Zora talk about the Will or state that Branka would receive the studio or a third of her share in the Cowper Street property. Veselinka also says that she, Nevenka and Zora never discussed leaving any part of the Cowper Street property to anyone.
Branka says that following Zora’s alleged promise, she believed that she would have an exclusive right to occupy the studio for as long as she wished and that Zora would leave her an equal share of her interest in the Cowper Street property. In cross-examination (T31), when asked whether she was concerned that receiving one-third of Zora’s three-eighths share in the Cowper Streety property might not translate into an entitlement to live in the house, Branka indicated that she did not have any such concern.
Under cross-examination (T32), Branka responded to questions put to her about why she made no attempts to confirm that Zora had taken steps to action her promise. Branka leaned, once more, on the fact of the mother-daughter relationship, appearing to suggest that this supplied a self-evident and stable basis for the making of Zora’s alleged promise:

Q. Did you ask your mother if she had made a will to reflect that promise to you?
A. No, I didn’t ask her about it.
Q. Weren’t you concerned to ensure that she was going to do what she said she was going to do?
A. How can I pressure her to show me the will? I’m sorry, but that just wasn’t acceptable in my way of thinking, sir. I know what my mother promised and why wouldn’t she? I’m her daughter as well.
Q. So you didn’t ask your mother to see her will?
A. No, I didn’t ask to see her will.
Q. Did you ask if she was going to make a fresh will?

A. No, I wasn’t pressuring my mother for a will or to have me included in the will as verbal she has promised or stated. I just thought it just makes sense. I’m her daughter.

Under the heading titled “Consideration” in the section dealing with Issue 1 below, I have set out my findings in relation to whether Zora’s alleged promise was made to Branka. In my view, it was not.

Development approval for the studio is obtained

In around 2006 or early 2007, Nevenka applied for development approval for the construction of the studio on the Cowper Street property (development application).
On 2 May 2007, a proposed development plan for the construction of a first-floor studio above the existing garages on the Cowper Street property dated July 2006 (development plan) was received by Randwick City Council. The development plan, which had been produced by High Design, a professional architectural design and drafting service, listed Nevenka as the client.
On 5 June 2007, the development application was approved by Randwick City Council.
The notice of determination for the development application, issued by letter dated 6 June 2007 to Nevenka, included the following details:

Property Address:      XX Cowper Street, RANDWICK NSW 2031
Description of Work:    Construction of first floor studio above existing garages fronting Sydney Street.
Determination:      Approved
Determination Date:      5 June 2007
Consent to operate from:    6 June 2007
Consent to lapse on:    6 June 2012
…

Under the subheading ‘Conditions of consent’, the notice of determination relevantly stipulated:

5.    No cooking facilities or sanitary fittings other than those indicated on the approved plans are to be installed in the premises without the prior written consent of the Council.
…
7.   The studio located above the garages to Sydney Street shall not be let, adapted or used for separate residential occupation or commercial purposes at any time.
…
20.   An Occupation Certificate must be obtained […] prior to any occupation of the building work encompassed in this development consent …
An Occupation Certificate must not be issued for the development if the development is inconsistent with the development consent. The requirements of the Environmental Planning & Assessment Act 1979 and conditions of the development consent must be satisfied prior to the issuing of an occupation certificate.
…

According to Branka, she and Nevenka prepared the initial and revised plans for development approval of the studio. This is contested by Nevenka, who says that she prepared the initial draft plans and then instructed architects who completed the revised plan for the studio, which was then resubmitted for development approval.
In cross-examination, Branka accepted that she was not the client instructing the architects and that Nevenka dealt with the architects, but maintained that she, jointly with Nevenka, made decisions about the studio and its design and construction (T37).
Nevenka says that the studio was not approved for residential occupation by Randwick City Council and it was not built for Branka or anyone else to live in.
Ms Colnan gave evidence that after Branka moved in to the Cowper Street property, she would visit Branka on weekends for coffee around six times a year. Ms Colnan says that on one of these visits in or around 2007 or 2008, when the studio was being constructed on the Cowper Street property, Nevenka told her that the studio was being built for Branka. Ms Colnan states that Nevenka said the following words in her presence:

I want to get this building finished so that Branka can move in.
We are building the studio for Branka so that she can move in and be with us.

Nevenka denies having said this.
My findings in relation to the above evidence concerning steps preparatory to the construction of the studio on the Cowper Street property that were taken are as follows.
First, I reject Nevenka’s evidence that the studio was not being built for Branka or anyone else to live in, in circumstances where Nevenka and Veselinka have failed to point to any alternative reason for constructing the studio or use (other than to house Branka) to which the studio was intended to be put. Supporting this impression is the fact that the conditions of the development consent made clear that the structure could not be leased or used for separate residential occupation or commercial purposes at any time. There is also the evidence of Ms Meddows and Ms Colnan, both of whom recall being told by Nevenka that the studio was being built for Branka to live in. Their accounts tend to corroborate Branka’s version of events and as corroborative evidence emanating from persons independent of the family, I give particular weight to them.
Secondly, I consider that a finding by me that the studio was being built for Branka to live in (at least initially, and without precluding other uses which might later be contemplated) is consistent with the apparent logic of events. This is so where Branka was evidently living at the Cowper Street property on more than a temporary basis, having already bought and sold the Dutruc Street property and the Alison Road property and purchased the King Street property by this time, without setting herself up to live in any of those properties and instead using the former two as investment properties and reserving the latter as accommodation for Goran. It follows from this that Branka would, in all likelihood, have had some input in the design of a studio which was being constructed for her to move into. I am satisfied that Branka would have had some level of involvement in decisions concerning the design and construction of the studio.
Thirdly, only Branka was likely to fit the description of a person who could permissibly occupy the studio, given that it was a condition of the development approval that the studio was not to be used, let or adapted for separate residential occupation, but Branka was related to Zora and Nevenka and in that sense was not “separate” from the family group living at the Cowper Street property.
Accordingly, at this juncture, I make the following factual findings:

The studio was built for the intended purpose of housing Branka on the Cowper Street property.

I am satisfied that Nevenka’s first alleged studio representation — whereby Nevenka told Branka that she would build a studio on the Cowper Street property for Branka to live in — was in fact made.

Branka contributed to the design and construction of the studio (a matter which is addressed further below).

Construction of the studio

Between the latter half of 2007 and 2008, the studio was constructed.
Nevenka says that from 2008 to 2010, she was the owner-builder of the studio. Nevenka says she undertook various building courses to become an owner-builder and also had meetings with engineers, builders and tradespeople regarding the building work and materials to be used.
According to Branka, she and Nevenka completed various work in the studio including tiling, painting, laying floorboards and skirting, fitting a door to the bathroom, installing door frames and architraves, and sanding and polishing the floors. Branka says that Nevenka paid for construction of the studio, but she paid for the flooring, tiling, electrical, fixtures and taps.
This is contested by Nevenka, who says that Branka did not complete any work on the studio other than helping her install the floorboards and did not pay for any materials, stating that she herself purchased everything for the studio at auctions. Nevenka did concede that Branka occasionally assisted her with some minor work and on one occasion helped polish the floor in the studio.
In cross-examination, Branka maintained that she assisted Nevenka with work on the studio and that she paid for an invoice of 18 June 2008 for granite tiles that was addressed to Nevenka in cash (T34–35). She also said that she gave Nevenka cash on a number of occasions, and that any receipts in respect of things that she had paid for in connection with the construction of the studio (T34):

… I’ve given to Nevenka as per her request so that she can claim it against the tax as capital, whatever – or whatever.

In cross-examination, when it was put to Branka that there was no requirement to contribute anything (in terms of finance) towards the construction of the studio as a condition of it being built, Branka gave the following responses (T35):

A requirement, as if someone forced me, there wasn’t such a thing, but yes, “I’ll pay for this, I’ll pay for that, you pay for this, you pay for that”, that’s how it went.
…
There were no conditions other than just stay living with them and help around what I had been doing. What I had been doing even before I came and live in the house, I’ve been helping the family.

Ms Meddows gave evidence that during her time living in Unit 2 at the Cowper Street property (including during this period), she was in contact with Zora, Nevenka and Branka on an almost daily basis and that on most days she witnessed Branka and Nevenka working on the studio and performing tasks including painting, installing windows, laying timber floors and tiling. Ms Meddows also stated in her affidavit evidence that she witnessed Branka and Nevenka ‘put[ting] in the fixtures’ in the studio.
Under cross-examination, when asked about the work performed on the studio, Goran made some suggestion that Nevenka (at this stage aged in her fifties) was weaker than Branka and required her assistance with the construction work. He gave the following evidence (T55):

Q. You were aware that in 2007 and 2008, Nevenka did a lot of work building the studio unit at the Cowper Street property; aren’t you? So she was physically fit enough to do that work; was she not?
A. They did do a lot of work, yes, both of them. [Nevenka] being the more frailer of the two, my mum was more physically fit. It’s just how it was.

On these matters, I tend to find Branka’s evidence more credible for several reasons. For one, Nevenka’s evidence as to the nature and degree of Branka’s contributions (in terms of labour) towards the construction of the studio is contradicted by that of a witness independent of the family, Ms Meddows. As frequently was the case with Nevenka’s evidence, Nevenka took an extreme starting point, stating that Branka did not complete any work on the studio other than assisting with the installation of the floorboards, polishing the floor in the studio on one occasion and carrying out other occasional minor work. Against this is the evidence of Ms Meddows who says she observed Branka with Nevenka performing work on the studio extensively — painting, tiling, laying flooring, and installing windows — and fitting it out. While accepting that Nevenka may well have taken primary responsibility for and essentially project-managed the construction of the studio (as evidenced, among other things, by the appearance of her name on the development plan and Branka’s own evidence that Nevenka liaised with the architects), I do not accept Nevenka’s evidence that Branka’s contributions to its construction were negligible.
In relation to Goran’s evidence, I am cognisant of both sides in these proceedings pointing to bouts of ill-health suffered by each of Nevenka and Branka at different times as demonstrative of their limited capability to care for Zora or engage in physical labour of the kind the renovations to the Cowper Street property no doubt involved. The circumstances disclose that despite their respective illnesses, over a period of years the sisters carried out substantial improvements and modifications to the Cowper Street property, and were seen doing so. I am not prepared to draw inferences about the capacity (or incapacity) of either Nevenka or Branka to do the work involved in the relevant renovations on account of their actual or professed state(s) of health, or to make adverse findings as to their credibility as witnesses on such a basis, where both of them were evidently physically robust enough to perform the work and assisted each other in these endeavours.
As to Branka’s financial contributions, there is a distinct lack of documentary evidence, such as invoices or receipts, capable of demonstrating whether and how much she paid towards the fitting out of the studio. Branka herself maintained that there was no formal division of the expenses between herself and Nevenka, and that they each paid for things here and there. Left to base my assessment on the factual surrounding circumstances, and the general impression I have formed of Branka’s tendency to take financial advantage whenever it was available to her, I am satisfied that she contributed very little (if anything) to the expenses incurred in relation to the construction of the studio.

Purchase of the Don Juan Avenue property by Branka

On 19 December 2008, Branka purchased a one-bedroom unit at Don Juan Avenue, Randwick, New South Wales (Don Juan Avenue property) for $370,000.
Goran says that he moved in to the Don Juan Avenue property shortly after it was purchased. Branka says that Goran moving in to the Don Juan Avenue property was what was contemplated at that time. She made the following statements in cross-examination (T38):

Q. You had invited him to move into [the Don Juan Avenue property], had you?
A. Yes. That was the arrangement, family arrangement.
Q. You could have said to him, “No, I’m going to move in there.”
A. No, I couldn’t.
Q. Why could you not have done that?
A. Because I was staying with the family with the proviso that Goran can stay in my unit.

In cross-examination, Branka gave the following further evidence as to the occupation of the Don Juan Avenue property by Goran and his family, noting that they did not pay rent but covered some utility bills, and that there was no mortgage over the property (T40–41):

Q. At some point, your son and his partner moved into the Don Juan apartment. Is that right?
A. My son lived in Don Juan Avenue, and when his partner got pregnant, she came and lived with my son in the unit and their son also was born and lived with them in that unit as well.
Q. When did your son move into the Don Juan Avenue apartment?
A. You just told me the year and the month when the Don Juan was bought, that’s when he moved in. And sorry, I don’t remember it, but you’ve just told me the time, date, so yeah.
Q. Just before Christmas in 2008. Does that accord with your recollection?
A. Okay, let’s say - let’s say it is correct because you’re looking at the information.
Q. When did your son’s partner move into the unit?
A. Well, [Goran’s son] was born 30 April - I think it’s 30 April - 2012, so she moved in with him prior to that.
Q. I think you’ve told us that the Don Juan Avenue unit was a one-bedroom unit.
A. Yes, it was.
Q. Was Goran and his partner paying rent to you to live in that apartment?
A. No, they were not paying rent, but they were paying expenses regarding the unit.
Q. Was there a mortgage on the property?
A. No.
Q. The expenses that you refer to, are they the strata fees?
A. Strata, council rates, was it - water rates, yeah.
Q. So you had no financial expenditure connected to owning that property. Is that right?
A. That is correct.

In cross-examination, Goran accepted that while living at the Don Juan Avenue property he did not pay Branka any rent (T58–59). Goran said that when he was living at the Don Juan Avenue property, he was often borrowing money from his family and that he would sometimes contribute money towards electricity bills when he had it, but otherwise had to ask Branka to “help [him] out.”

Occupation certificate for the studio obtained

On 24 December 2008, an occupation certificate for the studio was issued to Nevenka by Randwick City Council.

Branka moves into the studio

In January 2009, Branka moved out of Unit 3 and into the studio on the Cowper Street property.
At this time, according to Nevenka, Branka asked Nevenka if she could sleep in the studio at the Cowper Street property. Nevenka says that at this stage the painting of the studio had not yet been finished, and Branka offered to finish the painting. Nevenka says that she agreed that Branka could stay in the studio if Branka did the painting, contributed to the payment of utilities (water, council rates, electricity and gas), provided help in the garden, and cleaned around the house, and on the condition that she left the studio when Veselinka came to Sydney or if Nevenka needed it for anything. Branka denies that a conversation of this description took place.
According to Branka, after moving in to the studio she continued to care for Zora and she, Zora and Nevenka lived in harmony, enjoying spending time together and each doing “what [they] could to maintain the property, clean etc”.
This is disputed by Nevenka and Veselinka. Nevenka says that from 2001 to 2017, she observed that Branka rarely spoke at length with Zora and that on one occasion Zora told her that it had been a week since Zora and Branka had spoken. Veselinka denies that the family lived together in harmony at this time.
Under cross-examination (T91–92), Nevenka agreed that she took no steps around this time to have Branka leave the property. Nevenka resisted any suggestion that Branka had a right to occupy the studio, stating that it was a case of Nevenka allowing Branka to be there subject to particular conditions, including that she complete the painting, perform gardening and maintenance work, and pay bills, and vacate the premises for Veselinka or other visitors as required. When asked about whether Branka complied with those conditions, Nevenka responded (T92):

A. She didn’t, except her studio was always available for Veselinka when she came with her family.
Q. Well, if she didn’t comply with the conditions, why didn’t you throw her out?
A. I wanted.
Q. You wanted to?
A. Yes, and I told her, but she cried to mum.

In cross-examination, Veselinka accepted that on occasion when she came to Sydney she asked for Branka’s permission to stay in the studio, as opposed to Branka being obliged to vacate the studio so that she could stay there (T128–130). Veselinka was taken to a series of text messages exchanged in May 2021 demonstrating these matters, including the following:

On 4 May 2021 at 8:44am, Veselinka texted Branka:

Good morning Branka. How r u today. Im planning to come over in a week or two to paint and clean up my flat. Could I please stay with u for a few days.

That same day at 8:57am, Branka replied as follows:

Most definitely, Goran is again at Byron, he is still here but hopefully he will move into the unit. If not, u and I will share the sofa bed. …

On 16 May 2021 at 1:08pm, Veselinka texted Branka:

… Im coming to Sydney on 18 May Tuesday night.
I will come by taxi.
It is still okay for me to stay overnight, is it?
If Goran is back, I will get myself a fold up bed and sleep in my flat until I finish the work.

At 2:07pm, Branka responded:

… Goran is back but still in the studio. You can stay with me but it might be a bit crowded a[t] night. …

In my assessment, I consider that it is likely that Nevenka permitted Branka to move into and occupy the studio, having built it for that purpose. This is reinforced by Veselinka evidently holding the view that she needed Branka’s permission to stay in the studio on those occasions when she travelled to Sydney.

Branka’s contributions to maintenance and upkeep of the Cowper Street property and renovations of the Cowper Street property

Nevenka and Veselinka say that at all relevant times while she was living at the Cowper Street property, Branka never provided any assistance with maintenance or cleaning of the property. Nevenka also says that Branka never made any contribution towards water bills or council rates and only made occasional contributions to electricity and gas bills.
Against this, Goran gave evidence that while he was living at the Cowper Street property between approximately 2001 and August 2006, he witnessed Branka and Nevenka working on the property on multiple occasions. This included, he says, attending to general property maintenance and numerous jobs in Zora’s unit as well as renovations to Nevenka’s unit.

(f) In a case where an extension is sought, the sub-section superimposes a further requirement, or extra hurdle, over and above the matters that a Court will consider under s 87.
(g) Whether circumstances answer the description must depend upon the context in which they occur; it is the context that allows one to say that the circumstances in one case are markedly different from those in the usual run of cases. Their existence is also, in a sense, evaluative in character.

Brereton J in Stone listed several factual scenarios which were considered to answer the description or support findings of special circumstances (at [72], citations omitted):

Factors that have contributed to findings of special circumstances have included incapacity as a result of infancy, the fact that it was no fault of the applicant that application was not made within time, the strength on the merits of an applicant’s claim, the absence of prejudice (such as the fact that there has been no significant dealing with the notional estate in the meantime), and the belated falsification, after time for bringing an application for provision had expired, of a reasonable expectation that if fulfilled would have made an application unnecessary.

Submissions

Branka

No written or oral submissions were made by Branka on the application of Part 3.3 of the Succession Act and the need for a notional estate order in light of the completion of the administration of Zora’s estate, which occurred in 2018.

Nevenka and Veselinka

Nevenka and Veselinka submit that Branka has failed to establish grounds for the making of a notional estate order.
Referring to s 87(a) and (b) of the Succession Act, Nevenka and Veselinka contend that:

Regard must be had to the reasonable expectations of Nevenka and Veselinka in relation to the Cowper Street property as the registered proprietors of that property, and the importance of non-interference with those expectations.

Substantial injustice would be caused to Nevenka were a percentage of the Cowper Street property to be designated as notional estate, as the only way provision can be made for Branka is from the sale of that property. Noting that the Cowper Street property is and has been her home since 1988, and that she has expended significant monies on improvements to it in the wake of Zora’s death, they say that the prejudice to Nevenka of an order designating the Cowper Street property as notional estate is clear.

Turning to s 90, Nevenka and Veselinka note the application of that provision to the current proceedings (Branka’s application having been brought out of time) and state that because the conditions in s 90(2)(a) are not met, s 90(2)(b) is the relevant limb. In other words, they say, the court must be satisfied that “other special circumstances” justify the making of a notional estate order in this case.
In terms of the interaction of s 58(2) and s 90(2)(b) of the Succession Act, Nevenka and Veselinka state that these requirements — the need for sufficient cause to be shown for an extension of time to bring the claim, and the need for other special circumstances justifying a notional estate order — are additional and/or discrete rather than co-extensive. They say, citing Hallen AsJ in Charnock at [89], that the consequence of the use of the phrase “other” in s 90(2)(b) is that something extra is needed, beyond circumstances capable of demonstrating a sufficient cause for the purposes of s 58(2).
In this connection, Nevenka and Veselinka assert that Branka has failed to adduce evidence of any other special circumstances, and for that reason the notional estate order should not be made.

Consideration

I agree with the submissions of Nevenka and Veselinka on the application of Part 3.3 of the Succession Act. Accordingly, even if Branka was successful in having the time for the making of the family provision claim extended, I would not make an order designating part of the Cowper Street property as notional estate of Zora.
Beginning with the s 87 general matters, following Beazley P in Phillips and Ward J in John, I have given weight to the reasonable expectations of each of Nevenka and Veselinka (as persons whose proprietary interests stand to be disturbed by any prospective notional estate order), Branka (as a person seeking provision from the deceased’s estate) and Zora (the deceased). I consider that their expectations in relation to the Cowper Street property would be interfered with by the making (or refusal) of a notional estate order in the following ways:

Nevenka: This is a situation of the kind described by Slattery J in Manning, where a beneficiary who received the property (or, more accurately, an increased proportionate share of the property) in question has spent money or worked on the property, and formed an expectation that she would remain in possession of the property. I consider that this expectation was and is reasonably held, and has been cemented by the passage of some years during which nothing transpired to put Nevenka on notice that the distribution of Zora’s estate in accordance with the Will would be disturbed, including by virtue of a claim by Branka.

Veselinka: As a joint owner of the Cowper Street property alongside Nevenka (holding a 25% share in the property), I must pay similar regard to her reasonable expectation of continuing to hold that proprietary interest.

Branka: I have taken into account Branka’s expectation that she claims she held of receiving a percentage share of her mother’s interest in the Cowper Street property. However, noting that established principle and s 87(a) of the Succession Act only requires that I consider any reasonable expectations in relation to property, I do not give this purported expectation of Branka much weight. That is because I am not satisfied that that expectation was altogether reasonable, having determined on the balance of probabilities that Zora made no promise to bequeath Branka one-third of her interest in the Cowper Street property, and in light of Branka’s failure to take any steps to ensure that Zora would follow through on that alleged promise (T32).

Zora: To the extent that it is appropriate to consider the deceased’s own expectations in relation to the Cowper Street property, I am conscious of her testamentary intention, as reflected in the terms of the Will, that Nevenka should receive the entirety of the residue of her estate (following payment of any debts and probate and estate duties). This included Nevenka receiving Zora’s three-eighths share in the Cowper Street property upon her death. Noting that while Zora was alive, Nevenka was overwhelmingly responsible for all manner of caretaking in relation to the Cowper Street property, and that Veselinka did not reside or spend any significant amount of time at the Cowper Street property, I consider that any expectation on Zora’s part that this state of affairs would continue was wholly reasonable.

In light of the above, I consider that the reasonable expectations of Nevenka, Veselinka and Zora in relation to the Cowper Street property would be substantially disrupted if I were to make an order designating that property as notional estate. The need to avoid interfering with such expectations is a particularly significant concern in this case.

In addition to the foregoing matters, I regard the following factors as bearing on the substantial justice and merits involved in granting or refusing the notional estate order:

Substantial injustice would be visited upon Nevenka were a percentage of the Cowper Street property to be designated as notional estate. That is for the reasons identified by Nevenka and Veselinka, namely that the Cowper Street property has been Nevenka’s home since 1988, and that she has expended considerable time, effort and money in maintaining, improving and adding to the property, all while allowing Branka, since 2001, to reside there rent-free and without contributing to household expenses. I am satisfied that the only way provision can practically be made for Branka — through the designation of the Cowper Street property or part thereof as notional estate and its subsequent sale and distribution of the sale proceeds — stands to work a substantial injustice to Nevenka.

Conversely, I am not convinced that refusing the order would occasion any significant injustice vis-à-vis Branka, in circumstances where she has no real need for provision out of Zora’s estate (as I will discuss below).

In respect of s 90, for reasons similar to those underpinning my conclusion regarding the lack of any demonstrated sufficient cause for extending time pursuant to s 58(2), I consider that no “other special circumstances” capable of justifying the making of a notional estate order arise in this case. I agree with the submissions of Nevenka and Veselinka on this point. To use the expression adopted by Brereton J in Stone at [71], no circumstances “unusual, uncommon or exceptional in character, quality or degree” — and no material or evidence indicative of such circumstances — are present here.
For the reasons outlined above, I would not make a notional estate order in respect of the Cowper Street property.

ISSUE 4: FAMILY PROVISION ORDER

Given my determination that Branka’s claim for a family provision order should be dismissed on the bases outlined above, it is unnecessary to address at length the issue of whether, if those substantive hurdles had been overcome, I would have made an order in the exercise of the power under s 59(2) of the Succession Act for a family provision order in Branka’s favour out of Zora’s notional estate.
However, since I have referred, in dealing with the extension of time and notional estate order issues, to my view that Branka’s claim for a family provision order would not succeed, I will set out the applicable legal principles and the parties’ submissions and proceed to briefly explain why I would not, in the exercise of my discretion, have made such an order in any event.

Legal principles

Section 59 of the Succession Act relevantly provides:

(1)    The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—
(a)    the person in whose favour the order is to be made is an eligible person [defined in s 57(1)(c) as including a child of the deceased person], and
…
(c)    at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
Note—
Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order.

Section 60(2) contains a list of factors to which the court may have regard for the purpose of determining the eligibility of an applicant for family provision and whether and in what form a family provision order should be made. Those matters are:

(a)    any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b)    the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
(c)   the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d)   the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
(e)   if the applicant is cohabiting with another person—the financial circumstances of the other person,
(f)   any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g)   the age of the applicant when the application is being considered,
(h)   any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i)   any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
(j)   any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k)   whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l)   whether any other person is liable to support the applicant,
(m)   the character and conduct of the applicant before and after the date of the death of the deceased person,
(n)   the conduct of any other person before and after the date of the death of the deceased person,
(o)   any relevant Aboriginal or Torres Strait Islander customary law,
(p)   any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

In Baker v Baker [2024] NSWSC 559, Hammerschlag CJ in Eq at [20]–[26] helpfully summarised the provisions of the Succession Act and legal principles governing the making of family provision orders as follows:

[20] The following useful summary of the basal provisions of the Act concerning this type of application was recently provided by Basten AJ in Bohen v Mitchelmore [2024] NSWSC 171 (Bohen v Mitchelmore) at [18]-[20]:
[18] The statutory scheme for family provision orders is found in Pt 3.2 of the Succession Act. It commences by identifying classes of “eligible persons” who may make such an application: s 57. The classes include a child of the deceased person…
[19] The Court may make such an order if satisfied that, at the time the Court is considering the application, “adequate provision for the proper maintenance, education or advancement in life of the person … has not been made by the will of the deceased person”: s 59(1)(c). If so satisfied, the Court is empowered to make “such order” as it thinks “ought to be made for the maintenance, education or advancement in life of the eligible person”: s 59(2).
[20] In determining whether an order should be made and, if so, in what form, the court is empowered to have regard to matters set out in s 60(2) of the Succession Act. Those matters provide guidance, but are not exhaustively stated. Importantly, they inform the content of what may be considered “adequate” provision and “proper” maintenance, education or advancement in life. These matters require the Court to consider the family relationship between the applicant and the deceased person, “including the nature and duration of the relationship” (par (a)); “the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant … or to any beneficiary of the … estate” (par (b)); “the nature and extent of the … estate” (par (c)); “the financial resources (including earning capacity) and financial needs, both present and future, of the applicant” and of any beneficiary of the estate (par (d)); “the age of the applicant” (par (g)); “evidence of the testamentary intentions of the deceased person” (par (j)); “the character and conduct of the applicant before and after the date of the death of the deceased person” (par (m)); and “any other matter the Court considers relevant” (par (p)).

[21] It is well established that s 59 requires a two-step process. First, the Court considers whether adequate provision for the proper maintenance, education or advancement in life of the applicant for the order has not been made by the Will, and if the Court is satisfied that it has not been made, the Court may make such order for provision out of the deceased’s estate as the Court thinks ought to be made for the maintenance, education or advancement in life of the applicant having regard to the facts known to the Court at the time the order is made (the emphasised words appear in s 59(2)). Those words focus attention on the necessity for the Court to have updated information, which in turn casts upon an applicant a duty to make full and frank disclosure of her or his financial circumstances as at the date of the hearing: DJ Singh v DH Singh and Others [2018] NSWCA 30 at [284]-[291].
[22] The requirement for the Court to have regard to the facts known to it at the time of the order brings with it the clear implication that the relevant facts will be placed before the Court. Added to this, an applicant’s financial circumstances are matters specifically within their own knowledge. In Srekovic v Srekovic [2018] NSWSC 1597, Hallen J (as His Honour then was) had occasion to remark, with reference to Practice Note SC Eq 7 (as it then stood), that:
[228] I have stressed, on numerous occasions, the need of an applicant for provision to disclose her or his financial circumstances at or about the time of the hearing. Indeed, Paragraph 17 of Practice Note SC Eq. 7 requires updating affidavits to be filed and served, and, invariably, when a matter is set down for hearing, a direction is made for such affidavits to be served a few days prior to the final directions hearing. Regrettably, more often than not, as in this case, the direction is not complied with.

…
[24] If it becomes clear that there are pertinent facts which have not been placed before the Court, it cannot make the evaluative judgment which s 59(1)(c) requires it to make: Cringle v Cringle [2018] NSWSC 1558 at [35]-[36]; Stone v Stone [2019] NSWSC 233.
[25]   The following canons emerge from the series of decisions cited immediately below:
(1)   an applicant has the onus of establishing that adequate provision for their proper maintenance, education or advancement in life was not made by the will;
(2)   the terms “proper” and “adequate” do not invoke any precise or immutable standard. The standard will depend on the circumstances of the case;
(3)   the jurisdiction is not exclusively needs-based. There are other relevant considerations, as the list of relevant factors in s 60 makes clear;
(4)   the notion of advancement in life is concerned or envisages, not merely maintaining a standard or status of an eligible person, but in an appropriate case improving and enhancing it;
(5)   the Act does not create legal rights of inheritance;
(6)   fairness and equality are not touchstones for relief, and it is not appropriate for the Court to endeavour to achieve an overall fair division of the deceased’s estate; and

(7) the discretion to make an order is not untrammelled or to be exercised according to idiosyncratic notions of what is thought to be fair or in such a way as to transgress unnecessarily upon the deceased’s freedom of testation.
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Hughes v National Trustees (1979) 143 CLR 134 at 149; Gorton v Parks (1989) 17 NSWLR 1; Singer v Berghouse (1994) 181 CLR 201; McKenzie v Topp [2004] VSC 90; Vigolo v Bostin (2005) 221 CLR 191 at [10]; Sung v Malaxos [2015] NSWSC 186 at [5]; Steinmetz v Shannon (2019) 99 NSWLR 687; Barbuto v Barbuto [2019] NSWSC 1023 at [308] and following; Bohen v Mitchelmore at [21] and following.

[26] Section 63(5) provides that a family provision order may be made in relation to property that is not part of the estate of the deceased if it is designated as notional estate of the deceased by an order under part 3.3.

Determining the adequacy of provision involves an evaluative judgment, on a question of objective fact, based on all the circumstances: Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 147–8; [1979] HCA 2; White v Barron (1980) 144 CLR 431 at 434–5, 443; [1980] HCA 14; Singer v Berghouse (1994) 181 CLR 201 at 210–211; [1994] HCA 40.
Where a claim is brought by an adult child of the deceased, the following principles (lifted from Smith v Johnson [2015] NSWCA 297, Sackville AJA (Macfarlan and Ward JJA agreeing) at [62], reproducing Camernik v Reholc [2012] NSWSC 1537, Hallen J at [159]) offer guidance:

A child does not cease to be a natural recipient of parental ties, affection or support upon leaving home or merely because the bonds of childhood are relaxed.

Ordinarily (but without fixing this as a universal standard), there exists a community expectation that parents will raise and educate their children to the best of their ability while they remain children. Where feasible and where financial circumstances allow, this will probably mean securing them with a tertiary education and providing them with a start in life such as a deposit on a home. While this does not extend, in ordinary circumstances, to providing one’s children with an unencumbered property or the finance to acquire an unencumbered house, in a particular case where assets permit and the relationship between the parties is such as to justify it, such an obligation may be taken to exist.

In general, the community does not expect a parent to look after their child for the duration of the child’s life and into retirement, particularly where someone else (such as a spouse) has or may be taken to have assumed the primary obligation to do so. In respect of an adult child who remains a dependent of a parent, the community will usually expect the parent to make provision to fulfil that ongoing dependency after death.

Where a child, including an adult child, encounters hard times, or has been unable to accumulate superannuation or otherwise make provision for their retirement and there are assets available, then a parent may be expected to provide a buffer against contingencies and/or something to assist their child in their retirement if otherwise they would be left destitute.

If a person applying for family provision has obligations of support in respect of others (such as a parent’s obligation to support a dependent child), that will be a relevant consideration in determining what is an appropriate provision for the maintenance of the applicant.

An applicant adult child is not required to show some special need or special claim.

An adult child’s lack of savings sufficient to meet present and future demands, such as that of ill-health, which is likely to be of greater concern with age, but also of the ordinary vicissitudes of life, is a relevant consideration. An applicant’s diminished or total lack of earning capacity could give rise to an increased call on the estate of the deceased.

The applicant bears the onus of establishing before the court, on the balance of probabilities, the justification for the claim.

Submissions

Branka

In respect of her claim for family provision, Branka submits that she is an eligible person (being a daughter of the deceased); that Zora did not make adequate provision for Branka in the Will; that while she owns property (the Prince Street property), she has effectively gifted that property to Goran and his family; and that she has health problems and limited savings for the future contingencies of life.
In the course of closing submissions at the hearing before me, Branka accepted that the issue of need posed some difficulty (T166), but suggested that adequate provision would see Branka given something in the realm of one-third of Zora’s share on an estate of $5 million (in other words, 12.5% of $5 million).
Branka submitted that I ought to compare her position with that of her sisters, noting:

Nevenka is reasonably well set up, with the “lion’s share” (75%) of the Cowper Street property, and income slightly in excess of her monthly outgoings, although she has health problems which elevate her need.

Veselinka is likewise relatively well-off, residing at Kilmarnock and holding a 25% share in the Cowper Street property.

Nevenka and Veselinka

Nevenka and Veselinka submit that the critical point on which Branka’s claim for family provision hinges, and must ultimately fail, is the adequacy of provision made for her by Zora in the Will. They say that in circumstances where Branka owns a property in which she could live, receives income in excess of her expenditure, does not assert any material needs, and was not materially dependent on Zora, it cannot be said, notwithstanding the Will conferred no benefit on Branka, that provision was inadequate and as such the jurisdictional requirement posed by s 59(1) of the Succession Act is not met.
On the relevance to this question of Branka’s alleged acts of service, including assisting with renovations of the Cowper Street property and providing care to Zora, Nevenka and Veselinka submit, without admitting that conduct, that it would not entitle Branka to provision from Zora’s estate. They say that family provision orders are not made as a reward for service, pointing to Windeyer J’s remarks in Blore v Lang (1960) 104 CLR 124 at 137; [1960] HCA 73 to the effect that family provision orders aim to “provide for deserving persons according to their requirements, not to reward past services” and in the same case, Menzies and Fullagar JJ’s statement at 134 that:

Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court.

It is not the case, Nevenka and Veselinka say, citing Campbell JA (with whom Giles JA and Handley AJA agreed) in Hampson v Hampson [2010] NSWCA 359 at [80], that “[n]either entitlement to an award, nor its quantum, accrues good deed by good deed.” In their submission, any work done by Branka to assist in the renovations of the Cowper Street property does not entitle Branka to a family provision order in her favour.
In terms of Branka’s financial need, Nevenka and Veselinka place emphasis on the following factors:

At the time Zora made the Will and at all times since then, Branka has owned real estate in Randwick.

Branka presently owns the Prince Street property and is able to move into that property.

Branka possesses cash reserves in excess of $70,000.

Branka’s monthly income exceeds her monthly expenses.

No evidence has been adduced (or any specific assertion made) of Branka’s future needs or material dependence on Zora at any time.

For the foregoing reasons, Nevenka and Veselinka assert that the court should decline to make an order for family provision in Branka’s favour.

Consideration

In reaching the conclusion that I would refuse the family provision order sought by Branka even if she had succeeded on the extension of time and notional estate issues, I have had regard to all of the evidence summarised above and all relevant s 60(2) matters. In all the circumstances, I cannot be satisfied that adequate provision for the proper maintenance, education or advancement in life of Branka was not made by the Will. That being so, the requirements for the exercise of the discretion conferred by s 59 are not met.
Of the non-exhaustive matters set out in s 60(2), I consider that the following considerations have particular force in the present case.

Nature of the relationship with the deceased

While I accept that Branka likely shared a loving relationship with her mother, the evidence tends to demonstrate that that relationship with Zora may not have been as close, as stable or as amicable as that between each of Nevenka and Veselinka and Zora, at least at different points in time. Again, this has to do with the alliances between the four women that formed and dissolved and re-formed over the years. In this connection, I place weight on the early dispute regarding the predecessor family property (the Avoca Street property), the joint ownership of the Cowper Street property by Zora, Nevenka and Veselinka (despite Veselinka living at Kilmarnock for much of the relevant period), and Zora’s earlier will whereby she devised the residue of her estate to Nevenka and Veselinka in equal shares, omitting Branka. I am also conscious that it was Nevenka who became Zora’s full-time carer when Zora’s health deteriorated in around 2010, setting up a makeshift bedroom for Zora in her own unit from which she nursed her.

Obligations of the deceased and contributions to the deceased’s estate and welfare

Having reviewed the principles applicable to claims by adult children, I am not satisfied that Zora owed Branka any obligations of care above and beyond what might be said to be usual, particularly given that Branka appears at all relevant times to have been self-sufficient. She has demonstrated extensive experience in trading in properties and canniness in making investments, and has only co-habited with her mother and sisters since 2001 for what she says are family (as opposed to financial) reasons. There is nothing to suggest any ongoing or material dependency on Zora on the part of Branka. The evidence before me is that she does not lack financial resources or reserves and owns property in her own right. Against this, Branka has an adult child who she has taken it upon herself to support — such as by providing rent-free accommodation and paying his tuition fees — well into adulthood and who might be regarded as a dependent of her own, and I note that this a relevant consideration in determining what might constitute appropriate provision for her maintenance.
In terms of contributions to Zora’s estate and welfare, I again note that Nevenka’s efforts outstrip that of Branka, but that Branka did contribute by providing some level of care and assistance to Zora while she was alive, and by assisting with renovations of the Cowper Street property. As stated above, I have found that these contributions to improving the Cowper Street property (and therefore part of Zora’s estate) were more than nominal.

Nature of the estate or any property that could be designated as notional estate

The administration of Zora’s estate was completed in 2018. The evidence before me is that the only property capable of being designated as notional estate of Zora is the Cowper Street property, which is presently held by Nevenka and Veselinka as tenants-in-common in unequal proportions (three-quarters and one-quarter shares respectively).
I have set out my conclusions as to the impact a notional estate order would have on the rights, interests and expectations of all relevant parties above.

Financial circumstances

Branka has assets with a combined value in excess of $1.33 million, including real property (the Prince Street property) and over $75,000 in savings. Her monthly income exceeds her monthly expenses by approximately $465. No evidence as to Branka’s future financial needs was placed before me.
Nevenka has assets worth just over $3.8 million, including a 75% share of the Cowper Street property. Her monthly income exceeds her monthly expenses by around $2,657.50. Nevenka’s estimated future expenses, including medical expenses, are not insignificant. I am satisfied that Nevenka, by reason of her chronic medical condition (but without entering into any detailed assessment or projection of the specific kind and cost of specialist treatment and domestic or in-home care assistance she may require at some future time), has substantial financial needs that, although presently met from her monthly income, may increase into the future with the progression of her illness.
Veselinka has assets worth approximately $1.3 million. Her monthly income exceeds her monthly expenses by approximately $325. I consider that she may have some moderate level of future financial need stemming from health conditions which she has deposed to suffering that is presently met by her monthly income.

Applicant’s age, disability and present and future needs

There is no evidence of any physical, intellectual or mental disability of Branka, although I note her advanced age (71 years).

Deceased’s testamentary intentions

The terms of the Will make plain Zora’s intention that Nevenka would be the sole beneficiary in receipt of the assets of her estate.

Conclusion

In light of the above, in all the circumstances, I find that there would be no occasion to make an order for family provision in favour of Branka. The main factor compelling this conclusion is Branka’s lack of need, which I discern from the present state of her financial circumstances (including ownership of unencumbered real estate in Randwick with a value in excess of $1 million) as disclosed. To my mind, that plain lack of need, in combination with Zora’s clear testamentary intentions, the absence of evidence as to Branka’s future needs or material dependence on Zora at any relevant time, and the other s 60(2) factors addressed above, means that, notwithstanding the Will conferred no benefit on Branka, provision was not inadequate and as such the jurisdictional requirement posed by s 59(1) of the Succession Act is not satisfied.
As an aside, I am minded to address Branka’s submission as to the use to which the Prince Street property owned by her has been put. It was argued before me that the Prince Street property has effectively (although not technically) been gifted to Goran and his family, that it is their residence, and that she cannot, practically-speaking, live there with them. At the hearing, my attention was drawn to the “cultural overlay” of this arrangement (T162).
Whilst I accept that Branka has made the decision to support her adult son by providing him and his family with a home in which to live without paying rent, and I accept that it would, perhaps, be culturally inappropriate for her to request that he vacate the Price Street property, as a matter of law, she is the absolute owner of that property and is entitled and has the capacity to use it to meet her own accommodation needs — in the same way that Nevenka and Veselinka as the registered proprietors of the Cowper Street property are entitled to terminate the tenancy at will pursuant to which Branka occupied various parts of the Cowper Street property since 2001. The court must give due weight to Branka’s ownership of the Prince Street property as part of her unencumbered assets for the purposes of determining the adequacy of provision under s 59, and, had I not already determined both that Branka’s application under s 58(2) of the Succession Act should be refused and that no notional estate order should be made, I would have done so.

ISSUE 5: POSSESSION

Having determined all of the claims made in the cross-claim by Branka adversely to her, Branka has no right to remain at the Cowper Street property and each of Nevenka and Veselinka as the registered proprietors of the Cowper Street property are entitled to bring an end to Branka’s occupation of the Cowper Street property.
Branka has previously been asked to leave the Cowper Street property: on 14 June 2021, by the letter of demand sent by Nevenka to Branka, which Branka received on 21 June 2021, demanding that she leave within two weeks; on 5 January 2022, by the termination notice sent by Nevenka to Branka, demanding that she leave within two weeks; and on 24 August 2022, by the letter from Adams & Co to Branka demanding that she leave within two weeks.
In all the circumstances, Nevenka and Veselinka are entitled to judgment for possession of the Cowper Street property. There is no basis on which the execution of a writ for possession should be delayed in light of the fact that Branka is the registered proprietor of the Prince Street property into which she is able to move.

COSTS

The costs of the proceedings, calculated on an indemnity basis up to and including the completion of the four-day hearing before me, of Nevenka and Veselinka are estimated to be $133,000.00 (exclusive of GST).
Branka’s costs of the proceedings, calculated in the same manner, are estimated at $110,000.00 (exclusive of GST).
As the administration of Zora’s estate has been completed, and I have determined that no notional estate order should be made, no costs can be awarded out of the estate or the notional estate of Zora. Accordingly, I will direct that the parties provide brief written submissions in respect of any proposed costs order, with the intention that the issue of costs, if disputed, be dealt with by me on the papers.

ORDERS

For the reasons I have given above, I propose to make the following orders:

Order that the cross-claim filed 5 December 2022 be dismissed.

Judgment for the plaintiffs against the defendant for possession of the whole of the land known as XX Cowper Street, Randwick, New South Wales, being the whole of the land comprised in certificate of title folio identifier Lot 1 in Deposited Plan 81492 (Property).

Grant leave to the plaintiffs to issue a writ of possession in relation to the Property.

Direct that:

The plaintiffs file and serve any submissions in respect of costs (limited to two pages, size 12 font, 1.5 spacing) within 7 days of today.

The defendant file and serve any submissions in respect of costs in response (limited to two pages, size 12 font, 1.5 spacing) within 14 days of today.

**********

Amendments

04 December 2024 - Table of contents added

21 February 2025 - Table of Contents - corrected numbering.

Decision last updated: 21 February 2025

Medium Neutral Citation:	Nevenka Dmitrovic v Branka Kleut [2024] NSWSC 1541
Hearing dates:	24–26 June 2024
Date of orders:	03 December 2024
Decision date:	03 December 2024
Jurisdiction:	Equity – Probate and Family Provision List – Family Provision
Before:	McGrath J
Decision:	1. The cross-claim filed 5 December 2022 is dismissed. 2. Judgment for the plaintiffs against the defendant for possession of the whole of the land known as XX Cowper Street, Randwick, New South Wales, being the whole of the land comprised in certificate of title folio identifier 1/81492 (Property). 3. Plaintiffs granted leave to issue a writ of possession in relation to the Property.
Catchwords:	ESTOPPEL — equitable estoppel — proprietary estoppel — estoppel by representation — where plaintiffs/cross-defendants and mother owned family property as tenants in common in unequal proportions — where defendant/cross-claimant permitted to occupy the property for an extended period of time without paying rent — alleged representations by first plaintiff/cross-defendant to defendant/cross-claimant of right of sole occupancy of studio on non-subdivided property — alleged promise by mother to bequeath defendant/cross-claimant one-third of mother’s share in the property — findings of fact that form of studio representations made but mother’s promise not — asserted acts of reliance including remaining at the family property instead of moving into properties owned by defendant/cross-claimant at different times — lack of detrimental reliance in circumstances where defendant/cross-claimant benefitted financially and otherwise from purported acts of reliance and insufficient evidence that those acts were done in reliance on studio representations as opposed to expectation of ongoing tenancy at will — lack of unconscionability — HELD — no estoppel arising in favour of defendant/cross-claimant SUCCESSION — family provision — claim by adult daughter for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — application made out of time — significant and largely unexplained delay — mere change of mind insufficient — where beneficiaries would be materially and substantially prejudiced by the delay — sufficient cause not shown — where estate already distributed — notional estate —where order designating family property as notional estate needed to give effect to any provision made — where such order would disrupt reasonable expectations of registered proprietors and deceased and occasion substantial injustice — no “other special circumstances” for the purposes of s 90(2)(b) established — consideration of general s 60(2) matters including applicant’s financial circumstances and deceased’s testamentary intentions — where applicant owns unencumbered property — no evidence or assertion of future needs or material dependency on the deceased — HELD — application for extension of time refused — notional estate order and family provision order would also be refused LAND LAW — possession of land — possession sought by registered proprietors from tenant at will —no defence to claim for possession — judgment for possession
Legislation Cited:	Evidence Act 1995 (Cth) s 38 Family Provision Act 1982 (NSW) s 28 Succession Act 2006 (NSW) Ch 3
Cases Cited:	Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277 Anderson v Yongpairojwong [2023] NSWSC 1359 Baker v Baker [2024] NSWSC 559 Blore v Lang (1960) 104 CLR 124; [1960] HCA 73 Camernik v Reholc [2012] NSWSC 1537 Campbell v Chabert-McKay [2010] NSWSC 859 Charnock v Handley [2011] NSWSC 1408 Chu v Ngar [2015] NSWSC 1505 Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55 Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 Evans v Evans [2011] NSWCA 92 Foley v Foley [2008] NSWSC 233 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Galaxidis v Galaxidis [2004] NSWCA 111 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 Graham v Vukic [2020] NSWSC 1801 Hampson v Hampson [2010] NSWCA 359 Henry v Hancock [2016] NSWSC 71 Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 John v John; John v John [2010] NSWSC 937 Kastrounis v Foundouradakis [2012] NSWSC 264 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Manning v Matsen [2015] NSWSC 1801 Moore v Randall& Anor [2012] NSWSC 184 Morgan v Black [2023] NSWSC 1073 Petschelt v Petschelt [2002] NSWSC 706 Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 Pirrottina v Pirrottina [2024] NSWSC 558 Purnell v Tindale [2020] NSWSC 746 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slade v Brose [2024] NSWCA 197 Smith v Johnson [2015] NSWCA 297 Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332 Standard Chartered Bank Aust Ltd v Bank of China (1991) 23 NSWLR 164 Stone v Stone [2016] NSWSC 605 Sullivan v Sullivan [2006] NSWCA 312 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572 Thorner v Major [2009] UKHL 18; 3 All ER 945 Touma v Highfields Australia Pty Ltd [2024] NSWCA 160 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603 Watson v Foxman (1995) 49 NSWLR 315 WhiteConstructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Zirkler v McKinnon [2002] NSWSC 285
Category:	Principal judgment
Parties:	Nevenka Dmitrovic (First Plaintiff/First Cross-Defendant) Veselinka Dmitrovic-Gregory (Second Plaintiff/Second Cross-Defendant) Branka Kleut (Defendant/Cross-Claimant) Nevenka Dmitrovic trading as Executrix of the Estate of the late Zora Dmitrovic (Third Cross-Defendant)
Representation:	Counsel: D Price (Plaintiffs/Cross-Defendants) T Morahan (Defendant/Cross-Claimant) Solicitors: Adams & Co Lawyers (Plaintiffs/Cross-Defendants) Lang Noonan Legal (Defendant/Cross-Claimant)
File Number(s):	2022/00329452
Publication restriction:	Nil