ESTOPPEL by conduct — General principles — Claim by ex-husband that he did not seek property settlement in 1992 in reliance on deceased’s representation that she would leave him the matrimonial home to which he had allegedly contributed to mortgage repayments — Plaintiff’s evidence including conversations with deceased not capable of corroboration and insufficient to establish claim
SUCCESSION — Family provision and maintenance — evidence — Claim by ex-husband — Application to extend time — Whether factors warranting — Succession Act 2006 (NSW), s 59(1)(b)
EVIDENCE — Affidavit evidence — Non-English speaking witness — How affidavit to be prepared — Bilingual legal representative not to perform role of interpreter — Judicial Council on Cultural Diversity, “Recommended National Standards for Working with Interpreters in Courts and Tribunals”
Hamilton, Lindsay, Morahan and Webster (eds), New South Wales Civil Procedure Handbook 2018 (Thompson Reuters, 8th ed, 2018) Judicial Council on Cultural Diversity, “Recommended National Standards for Working with Interpreters in Courts and Tribunals” (2017, Ritchie’s Uniform Civil Procedure NSW (Looseleaf, Lexis Nexis Butterworths)
Category:
Principal judgment
Parties:
Radan Rogic (Plaintiff)
Irene Samaan (First Defendant) Mile Gorgioski (Second Defendant)
Representation:
Counsel: A Blank (Plaintiff) L Ellison SC (Defendants)
The plaintiff, Radan Rogic, married the late Ljubica Pacic in April 1989 after an acquaintance of five months. Radan was then 31 years old and Ljubica was almost 43 years old. They were divorced on Ljubica’s application in December 1992. They had no children and there was no property settlement.
Ljubica died from cancer in July 2015 at the age of 69. In the twenty-two years between her divorce from Radan and her death, Radan was married for thirteen years to another woman with whom he had two children. Radan’s second marriage also ended in divorce. Although the extent of their friendship is a matter of controversy, the Court accepts that Radan and Ljubica remained on socially friendly terms after their divorce and that Radan was one of several people who provided care and support to Ljubica at the end of her life.
Ljubica’s only substantial asset was her home at Canley Heights (the “Property”). She had purchased it subject…
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
AGLC
Rogic v Samaan [2018] NSWSC 1464
Case
[2018] NSWSC 1464
Decision Date
CaseChat Overview and Summary
In the matter of Rogic v Samaan, the deceased, who was married to the plaintiff, Mr. Rogic, for approximately 17 years, passed away in 2012. The plaintiff sought to have the deceased’s will, which made no mention of him, set aside. His claim was based on the assertion that he had relied on the deceased’s representations that she would leave him the matrimonial home. The deceased’s nephew, the defendant, was the executor of the estate and sought to uphold the will. The matter was heard in the Supreme Court of New South Wales.
The primary legal issues before the court were whether the plaintiff’s claim was barred by estoppel due to the length of time taken to bring the action and whether the court should extend the time limit under section 59(1)(b) of the Succession Act 2006 (NSW). The court had to assess the plaintiff’s evidence, which included conversations with the deceased, and whether it was sufficient to establish the claim. Additionally, the court needed to consider the appropriate process for obtaining affidavit evidence from a non-English speaking witness, ensuring the evidence was not influenced by the interpreter’s role.
The court found that the plaintiff’s evidence, which was not capable of corroboration and insufficient in quality, was not adequate to establish the claim. The court held that the plaintiff had not acted reasonably or expeditiously in bringing the application. The court concluded that the factors did not warrant an extension of time under section 59(1)(b) of the Succession Act 2006 (NSW). The court also highlighted the importance of ensuring that bilingual legal representatives do not act as interpreters and referred to the Judicial Council on Cultural Diversity’s “Recommended National Standards for Working with Interpreters in Courts and Tribunals” in this regard.
The final orders of the court dismissed the plaintiff’s application, with the court finding that the plaintiff had not met the burden of proof in establishing his claim. The court also noted the importance of adhering to the standards for working with interpreters in court proceedings.