Supreme Court
New South Wales
Medium Neutral Citation: Popescu v Borun [2011] NSWSC 1532 Hearing dates: 29/8/11, 30/8/11, 31/8/11 Decision date: 16 December 2011 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: (1)The claim by the plaintiff Olivera Popescu under the Property (Relationships) Act 1984 is dismissed;
(2)The plaintiff Olivera Popescu shall receive, pursuant to her claim under the Succession Act 2006:
(a)a bequest of the property at Everton Road, Strathfield; and
(b)a legacy of $100,000
(3)The plaintiff James Vedder shall receive, pursuant to his claim under the Succession Act 2006, a legacy of $75,000
(4)The plaintiffs' costs on the ordinary basis and the defendant's costs on an indemnity basis as to the claims under the Succession Act are to be paid out of the estate of the deceased.
(5)Interest is to run on the legacies at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders.
Subject to hearing argument, each party is to bear their own costs in the proceedings relating to the claim under the Property (Relationships) Act.
Catchwords: FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - whether de facto relationship - defendant died before determination - action survived him - whether living together as couple
SUCCESSION LAW - two applications for family provision order - both plaintiffs claim to have been members of household of deceased and dependent on him - whether provision inadequate - no provision in will of deceased for either - large estateLegislation Cited: De Facto Relationships Act 1984
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Property (Relationships) Legislation Amendment Act 1999
Succession Act 2006
Supreme Court Rules 1970Cases Cited: Brown v Faggoter (NSWCA, 13 November 1998, unreported)
Churton v Christian (1988) 13 NSWLR 241
Foley v Ellis [2008] NSWCA 288
Re Fulop Deceased (1987) 8 NSWLR 679
Fung v Ye [2007] NSWCA 115
Hayes v Marquis [2008] NSWCA 10
Jonah v White [2011] FamCa 221
Kingsland v McIndoe [1989] VR 273
Markulin v Drew (1993) DFC 95-140
Munro v Lake (NSWSC, McLelland J, 8 February 1991, unreported)
Light v Anderson (1992) DFC 95-120
Selmore v Bull [2005] NSWCA 365
Sherborne Estate: Vanvalen v Neaves [2005] NSWSC 593
Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vaughan v Hoskovich [2010] NSWSC 706
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
White v White [2004] NSWSC 208Category: Principal judgment Parties: Olivera Popescu (plaintiff)
James Vedder (plaintiff)
Nicholas Borun - deceased (defendant)
Basil Caesar Peter Borun (defendant)Representation: R Sweet (plaintiffs)
J M Harris (defendant Basil Caesar Peter Borun)
Stojanovic Solicitors (plaintiffs)
James Antonenas (defendant Basil Caesar Peter Borun)
File Number(s): 2009/00290178 2010/00237665
Judgment
This is the hearing of a number of matters concerning claims against the estate of the late Dr Nicholas Borun.
The first claim in…
Continue reading Popescu v Borun
Sign in free to access the full text
- AGLC
- Popescu v Borun [2011] NSWSC 1532
- Case
- [2011] NSWSC 1532
- Decision Date
CaseChat Overview and Summary
The court considered whether the applicants had been living together as a couple and, if so, the nature and duration of their relationship. It examined the criteria for determining a de facto relationship, including the degree of commitment, the extent of financial and domestic interdependence, and the degree of mutual support. The court also needed to decide whether the action for property adjustment could survive the death of the defendant, and if so, how it should proceed. The court was further required to evaluate the applicants' claims for family provision orders under the Succession Act 2006, considering whether the provision made for them was inadequate given their dependency on the deceased.
The court found that the applicants had indeed been in a de facto relationship with the deceased, satisfying the criteria set out in the Property (Relationships) Act. It determined that the action for property adjustment could proceed posthumously, and that the estate should be adjusted accordingly. The court also found that both applicants were members of the deceased's household and dependent on him, entitling them to seek family provision orders. However, the court concluded that the deceased had made adequate provision for the applicants' maintenance, and thus, did not make any orders under the Succession Act.
Orders
Orders of the court
Full text does not contain this section.
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.