Legal Research
Cases
Oreski v Ikac

Oreski v Ikac

Case [2007] WASC 195 (S) 30 August 2007

Jurisdiction

Costs

Limitation Periods

Admissibility of Evidence

Res Judicata

Civil Litigation & Procedure

Probate

No judgment structure available for this case.

Type to search within this case.

ORESKI -v- IKAC [2007] WASC 195 (S)

Link to Appeal :

[2008] WASCA 220 [2008] WASCA 220

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 195 (S)
Case No:	CIV:2048/2005	Heard:	15-16 AUGUST 2007
Coram:	BARKER J	Delivered:	30/08/07
Supplementary Delivered:	5/10/07
No of pages:	13	Judgment Part:	1 of 1
Result:	Defendants' costs to be taxed to be paid out of estate of deceased Plaintiff to bear own costs of action
Category:	B
PDF Version

Parties:	MARTA ORESKI MARIJA IKAC BERNARD IKAC VLADIMIR IKAC
Catchwords:	Costs Wills Probate Action for proof in solemn form of informal will General rule as to costs Exceptions in probate proceedings Unsuccessful plaintiff to bear own costs
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1 Supreme Court Act 1935 (WA), s 37 Wills Act 1970 (WA), s 8
Case References:	Argo v Whittaker [2007] WASC 131 Becker v Public Trustee of New South Wales [2006] NSWSC 1146 Briginshaw v Briginshaw (1938) 60 CLR 336 Burnside v Mulgrew; Re Estate of Grabrovaz [2007] NSWSC 550 Clay v Karlson [2001] WASC 141 Mitchell v Gard (1863) 164 ER 1280 Nock v Austin (1918) 25 CLR 519 Oreski v Ikac [2007] WASC 195 Paraskov v Paraskos [2002] WASC 109 Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 Public Trustee v Whitworth [2007] WASC 170 Re Cutcliffe's Estate; Le Duc v Veness [1959] P 6 Re Estate of Grounds; Page v Sedawie [2005] NSWSC 1311 Re Green (dec'd); Lloyd v Green [1969] WAR 67 Re Herbert Brothers (dec'd) (1990) 101 FLR 279 Reichelt v Reichelt [2007] WASC 79 Roebuck v Smoje [2001] WASC 95 Shorten v Shorten [2001] NSWSC 363 Szabo v Battye (No 2) [2006] NSWSC 1392 Twist v Tye [1902] P 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ORESKI -v- IKAC [2007] WASC 195 (S) CORAM : BARKER J HEARD : 15-16 AUGUST 2007 DELIVERED : 30 AUGUST 2007 SUPPLEMENTARY
DECISION : 5 OCTOBER 2007 FILE NO/S : CIV 2048 of 2005 BETWEEN : MARTA ORESKI

Plaintiff

AND

MARIJA IKAC

First Defendant

BERNARD IKAC

Second Defendant

VLADIMIR IKAC

Third Defendant

Catchwords:

Costs - Wills - Probate - Action for proof in solemn form of informal will - General rule as to costs - Exceptions in probate proceedings - Unsuccessful plaintiff to bear own costs

(Page 2)

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1

Supreme Court Act 1935 (WA), s 37
Wills Act 1970 (WA), s 8

Result:

Defendants' costs to be taxed to be paid out of estate of deceased

Plaintiff to bear own costs of action

Category: B

Representation:

Counsel:

Plaintiff : Mr D L Jones

First Defendant : Mr D M Bruns

Second Defendant : Mr D M Bruns

Third Defendant : Mr D M Bruns

Solicitors:

Plaintiff : Banaszak Legal

First Defendant : Hoffmans

Second Defendant : Hoffmans

Third Defendant : Hoffmans

Case(s) referred to in judgment(s):

Argo v Whittaker [2007] WASC 131
Becker v Public…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Oreski v Ikac

Details

AGLC: Oreski v Ikac [2007] WASC 195 (S)
Case: [2007] WASC 195 (S)
Decision Date

CaseChat Overview and Summary

The case of Oreski v Ikac, heard in the Supreme Court of Western Australia, involved a dispute over the validity of a purported will of Jimmy Hudson. The plaintiff, Marta Oreski, sought to have the document proved as the deceased's will, while the defendants, the deceased's relatives, opposed this claim. The court found that the document was not intended by the deceased to be his will and did not constitute a valid testamentary disposition. Following this decision, the plaintiff sought an order that her costs, as well as those of the defendants, be paid out of the deceased's estate. The defendants argued that the plaintiff should bear her own costs of the action.

The court considered the general rule that costs follow the event, unless one of two exceptions applies in probate matters. The first exception applies where the testator or a residual beneficiary is at fault, causing the litigation. The second exception applies where it is reasonable to propound or challenge the purported will. The court found that the first exception did not apply in this case, as there was no evidence of fault on the part of the deceased or any residual beneficiary. However, the court did find that the second exception applied, as it was reasonable for the plaintiff to commence proceedings to clarify the status of the document her son claimed to have found in the deceased's motor vehicle. Nonetheless, the court determined that it was not reasonable for the plaintiff to maintain the proceedings after receiving expert advice that the typewriter used to type the document was not the one the deceased had access to and used himself. The court concluded that the plaintiff should bear her own costs of the action, while the defendants were entitled to have their costs to be taxed paid out of the estate of the deceased.

Orders