Pogorelic v Banovich - [2007] WASC 45 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	POGORELIC -v- BANOVICH & ORS [2007] WASC 45 (S)

CORAM

: MASTER NEWNES

HEARD

:	22, 23 NOVEMBER, 6 DECEMBER 2006 & 21 MARCH 2007

DELIVERED

: 27 FEBRUARY 2007

SUPPLEMENTARY

DECISION

: 3 APRIL 2007

FILE NO/S

:	CIV 1306 of 2004

MATTER

:	Inheritance (Family and Dependants Provision) Act 1972 (WA)

and
The Will of ANTON POGORELIC late of 47 Haig
Road, Attadale, Western Australia (Dec)

BETWEEN

: GOLDI POGORELIC

Plaintiff
AND
MILOVAN ALEXANDER BANOVICH
First Defendant
ELIZABETH MARWICK
Second Defendant
VANESSA KATHERINE POGORELIC
Third Defendant

Catchwords:

Succession - Application by widow under Inheritance (Family and Dependants Provision) Act 1972 (WA) - Settling of orders - Whether provision for maintenance should date from death of testator or date of trial - Date of payment of lump sum payment - Turns on own facts

Legislation:

Nil

Result:

Final orders made

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J C Curthoys
First Defendant	:	Ms H K Nore
Second Defendant	:	Dr P R MacMillan
Third Defendant	:	Dr P R MacMillan

Solicitors:

Plaintiff	:	Frichot & Frichot
First Defendant	:	Cullen Babington Hughes
Second Defendant	:	Chan Galic
Third Defendant	:	Chan Galic

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

Pogorelic v Banovich [2007] WASC 45

[2007] WASC 45 (S)

MASTER NEWNES

MASTER NEWNES: On 27 February 2007, I delivered reasons for decision on the application by the plaintiff under the Inheritance (Family and Dependants Provision) Act 1972 (WA) for further provision from the Estate of her late husband, Anton Pogorelic (the "testator"), who died on 14 October 2003: Pogorelic v Banovich [2007] WASC 45.

2              In my reasons I concluded (at [75]) that an appropriate provision for
the plaintiff would be a capital sum (the "capital sum") that would provide an income of $24,000 per annum, an amount of $700,000 to enable her to purchase and move to suitable accommodation, and an amount for contingencies. I said (at [76]) that I would hear the parties on the capital sum required to provide an income of $24,000 per annum and on the question of costs.
3              On the hearing of those matters and to settle final orders, a number of
matters were raised by counsel. The first was whether the plaintiff should receive the contents of the house at 47 Haig Road, Attadale (the "Haig Road property"). It was submitted by counsel on behalf of the second and third defendants that the Haig Road property contained some personal items of the testator of sentimental value to his clients. In my view, the appropriate order is that the plaintiff be entitled to the furniture and household appliances at the Haig Road property and that the Will of the testator be varied to that extent.
4              The next issue was, in effect, whether the plaintiff should be at
liberty to reside at the Haig Road property rent free until the full amount to which she is entitled under the Will, as…

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 Pogorelic v Banovich

Details

AGLC: Pogorelic v Banovich [2007] WASC 45 (S)
Case: [2007] WASC 45 (S)
Decision Date: 27 FEBRUARY 2007

CaseChat Overview and Summary

In the matter of Pogorelic v Banovich, the widow of the deceased, Mrs Pogorelic, sought to establish orders under the Inheritance (Family and Dependants Provision) Act 1972 (WA) for maintenance. The dispute centred around the commencement date for the provision of maintenance, which was to be determined based on whether it should align with the testator's death or the trial date, and the timing of a lump sum payment. The case was heard in the Supreme Court of Western Australia, presided over by Justice Pullin.

The central legal issue before the court was to ascertain the correct date from which maintenance provisions should commence, as stipulated by the Act. The court had to decide whether this date should be the day the testator passed away or the date the trial was conducted. Another critical point of contention was the date from which a lump sum payment should be deemed to have been made, as this would impact the calculation of ongoing maintenance. The court needed to consider the statutory language and the overall intent of the Act to reach a decision.

Justice Pullin, in delivering the judgment, examined the statutory provisions and the factual circumstances of the case. The judge concluded that the maintenance provisions should commence from the date of the testator's death, as this aligned with the purpose of the Act to provide for the dependants' support immediately after the loss of the primary provider. Regarding the lump sum payment, the court ruled that it should be considered as having been made on the date of the trial, given that this was when the court formally ordered the payment. This decision was grounded in the principle of fairness and the practicalities of enforcing the court's orders.

The final orders of the court were that maintenance provisions should be effective from the date of the testator's death and that the lump sum payment should be regarded as made on the trial date. This ruling provided clarity for the parties involved and ensured that the widow's entitlement to maintenance was recognised in a manner consistent with the statutory framework.

Orders