Nikolic v Nikolic and 2 Ors - [2002] NSWCA 248

CITATION: Nikolic v Nikolic & 2 Ors [2002] NSWCA 248

FILE NUMBER(S): CA 41065/01

HEARING DATE(S): 25/07/02

JUDGMENT DATE:
25 July 2002

PARTIES :

Ratomir Nikolic (Appellant)
Zoran Nikolic (First Respondent)
Petar Dobrich (Second Respondent)
Dragica Nikolic (Third Respondent)

JUDGMENT OF: Giles JA at 20; Young CJ in Eq at 21; Davies AJA at 1

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : ED 1499/00

LOWER COURT
JUDICIAL OFFICER : Macready M

COUNSEL: G McGrath (Appellant)
In Person (First Respondent) & for (Third Respondent)
B Shields (Second Respondent)

SOLICITORS: Stojanovic Solicitors (Appellant)
Deacons (First & Third Respondents)
Ebsworth & Ebsworth (Second Respondent)

CATCHWORDS: REAL PROPERTY - transfer of property to son without consideration - whether undue influence on part of son - whether negligence on part of solicitor - no point of principle.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED:
Clark Boyce v Mouat [1994] 1 AC 428

DECISION: Appeal dismissed with costs.

CA 41065/01
ED 1499/00

GILES JA
YOUNG CJ IN EQ
DAVIES AJA
Thursday 25 July 2002

RATOMIR NIKOLIC v ZORAN NIKOLIC & 2 ORS

Judgment

1 DAVIES AJA: This is an appeal from a decision of Master Macready given on 14 December 2001. The Master dismissed a claim brought by the appellant, Ratomir Nikolic, against his son Zoran, his daughter-in-law Dragica and his solicitor Petar Dobrich. In dismissing the claim, the Master ordered the appellant to pay the costs of the proceeding on an indemnity basis as he considered the proceedings were without merit.

2 The matter which led to the proceedings was that the appellant, in August 1997, married his third wife Radmilla. He wished to deceive his wife and to ensure that, on his death, she had no claim to the house at 113 Brisbane Road at St Johns Park.

3 With a view to achieving this end he transferred, in two stages, title to the property to his son Zoran. Zoran later put the property in the names of himself and his wife Dragica. The transfer of the property to Zoran was effective to ensure that the property would not pass under any will which the appellant might make in his wife’s favour and that the wife could not make a claim on the property under the Family Provision Act 1982, provided that the appellant survived a further three years.

4 It was undoubtedly immoral for the appellant to so act and I would not condone his conduct.

5 Subsequently, after the appellant’s wife had ascertained what had occurred, the appellant instituted the proceedings which came before Master Macready claiming fraud, undue influence and negligence.

6 In this appeal, although the notice of appeal challenged the findings of Master Macready on all grounds, Mr McGrath, counsel for the appellant, has very properly withdrawn the allegation of fraud. I agree with that approach. In my view, there are no facts before the Court which suggest fraud or on which an allegation of fraud could be put with propriety.

7 I see…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWCA 248
Decision Date: 25 July 2002

CaseChat Overview and Summary

The parties to this appeal were the plaintiff, Mr. Nikolic, and his son, the first defendant, along with two other defendants. The dispute concerned the transfer of property from Mr. Nikolic to his son without consideration. Mr. Nikolic alleged that the transfer was procured by undue influence exerted by his son and that his solicitor had acted negligently in facilitating the transaction. The matter was heard by the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the transfer of property was vitiated by undue influence on the part of the son, and whether the solicitor had been negligent in his professional duties. The court was required to assess the evidence presented to determine if the son had exercised undue influence and if the solicitor had breached his duty of care to Mr. Nikolic.

The court found no error in the primary judge's findings. It was held that the evidence did not establish undue influence by the son. Furthermore, the court concluded that the solicitor had not been negligent, implying that the solicitor had acted appropriately in advising and acting for Mr. Nikolic in the property transfer. The appeal was consequently dismissed.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Nikolic v Nikolic & 2 Ors [2002] NSWCA 248
FILE NUMBER(S):	CA 41065/01
HEARING DATE(S):	25/07/02
JUDGMENT DATE:	25 July 2002
PARTIES :	Ratomir Nikolic (Appellant) Zoran Nikolic (First Respondent) Petar Dobrich (Second Respondent) Dragica Nikolic (Third Respondent)
JUDGMENT OF:	Giles JA at 20; Young CJ in Eq at 21; Davies AJA at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	ED 1499/00
LOWER COURT JUDICIAL OFFICER :	Macready M

COUNSEL:	G McGrath (Appellant) In Person (First Respondent) & for (Third Respondent) B Shields (Second Respondent)
SOLICITORS:	Stojanovic Solicitors (Appellant) Deacons (First & Third Respondents) Ebsworth & Ebsworth (Second Respondent)
CATCHWORDS:	REAL PROPERTY - transfer of property to son without consideration - whether undue influence on part of son - whether negligence on part of solicitor - no point of principle.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Clark Boyce v Mouat [1994] 1 AC 428
DECISION:	Appeal dismissed with costs.