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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Nevenka Dmitrovic v Branka Kleut [2024] NSWSC 1541
Case
[2024] NSWSC 1541
Decision Date
CaseChat Overview and Summary
The case of Nevenka Dmitrovic v Branka Kleut involved a complex dispute concerning ownership and rights to family property. The plaintiffs, Nevenka and her mother, were tenants in common of the property, with Nevenka owning a larger share. Branka Kleut, the defendant, had been allowed to occupy the property without paying rent for an extended period. The dispute centred on whether Branka was entitled to a sole right of occupancy of a studio within the property, based on alleged representations made by Nevenka, and a promise from the mother to bequeath a third of her share to Branka. Additionally, Branka sought a family provision order from the deceased estate of her mother, claiming delay in her application was due to a change of mind.
The court was required to determine whether Branka was entitled to an estoppel based on the alleged representations and promises, and whether the delay in Branka's family provision application could be excused. The court considered the nature and extent of Branka's reliance on the alleged representations, as well as the elements necessary for an estoppel to arise. The court also examined the impact of the delay on the estate and the beneficiaries, and whether there were special circumstances warranting an extension of time for the family provision claim.
The court found that Branka's reliance on the representations did not amount to a detriment, as she had financially benefited from her occupation of the property. The court also found that there was no unconscionability on the part of Nevenka and her mother, and therefore, no estoppel could be established in Branka's favour. The court further held that the delay in Branka's family provision application was significant and largely unexplained, and that the beneficiaries would be prejudiced by an extension of time. The court refused the application for an extension of time, and consequently, also refused the notional estate order and the family provision order. The court granted judgment for possession of the property in favour of the plaintiffs, Nevenka and her mother.