Re Cvitkovic - [2022] VSC 571

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2016 19394

IN THE MATTER of the Estate of ROBERT BOZO CVITKOVIC, deceased
BETWEEN:
DANICA CVITKOVIC	Plaintiff
and
MARIO ZELJKO CVITKOVIC and CHERRY PEHAR	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	28 September 2022
CASE MAY BE CITED AS:	Re Cvitkovic
MEDIUM NEUTRAL CITATION:	[2022] VSC 571

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COSTS – Where defendants issued summons in finalised proceeding – Where summons dismissed – Where defendants are to seek similar relief in new proceeding – Where costs sought against defendants – Finality – Orders dependent on defendants issuing proper proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Macpherson Kelley
For the Defendants	iWills Legal
For the non-party	Mr RD Shepherd	Geoff Dillon & Co Lawyers

HER HONOUR:

Introduction

Robert Bozo Cvitkovic (‘the deceased’) died intestate on 30 March 2016 in Zagreb, Croatia. The deceased was survived by the plaintiff, his alleged wife by marriage in Croatia on 24 October 2015, and the defendants, who are his adult children from two previous marriages.

On 21 November 2016, the plaintiff filed an application seeking a grant of representation in the estate of the deceased. By their grounds of objection filed 20 December 2016, the defendants dispute the validity of the deceased’s marriage to the plaintiff and thus contest whether the plaintiff has any interest in the estate. They assert that the deceased was domiciled in Croatia, with the consequence that his movable estate in Victoria passes according to Croatian law, but his immovable estate in Victoria passes pursuant to Victorian law. The defendants further claim that, even if the deceased’s marriage to the plaintiff was valid, they nevertheless have a greater interest in the deceased’s estate and therefore a better right to a grant of letters of administration.

There are currently three proceedings on foot in Croatia concerning the deceased. The first is an application by the first defendant seeking annulment of the deceased’s alleged marriage to the plaintiff; the second is an application by the defendants for a grant of administration in relation to the deceased’s assets in Croatia; and the third is a criminal proceeding alleging forgery by the plaintiff, the public notary who officiated the alleged wedding, and the witnesses thereto. The latter two proceedings are on hold until the first proceeding is resolved. The first proceeding was commenced on 24 October 2016, and according to the defendants’ solicitors in Croatia, will not be finalised earlier than March 2023. When that occurs, it is likely that the second proceeding will be determined within six months.

The deceased’s estate

According to the inventory of assets and liabilities filed by the plaintiff with her application, at the date of the deceased’s death, the total value of his estate was estimated at $16,189,430. The assets of his estate in Victoria were valued at approximately $15,807,282, and the assets of his estate in Croatia were…

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 Re Cvitkovic

Details

AGLC: Re Cvitkovic [2022] VSC 571
Case: [2022] VSC 571
Decision Date: 28 September 2022

CaseChat Overview and Summary

The matter of Re Cvitkovic involved proceedings brought by the defendants, who sought to have a final judgment set aside and to be released from personal liability in relation to the judgment. The case was heard in the Supreme Court of Victoria. The defendants had previously been involved in a finalised proceeding, from which they appealed unsuccessfully. They subsequently issued a summons seeking similar relief in a new proceeding. The applicants sought costs against the defendants.

The court was required to determine the appropriate costs order in light of the summons being dismissed and the defendants' intention to seek similar relief in a new proceeding. The central issue was whether the defendants were to be penalised for the improper initiation of the summons, and if so, to what extent. The court needed to balance the principle of finality in litigation against the need to deter frivolous or vexatious litigation.

The court held that, in the absence of exceptional circumstances, the defendants should not be penalised for the improper initiation of the summons. However, the court recognised that the defendants' actions warranted some sanction to deter future similar conduct. The court ordered the defendants to pay the applicants' costs of the summons, but with a reduced amount to reflect the need for deterrence rather than punishment. The court emphasised that the orders were dependent on the defendants not issuing a similar proceeding without proper cause.

No further orders were made by the court.

Orders