Nevenka Dmitrovic v Branka Kleut

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…