Stojanovska v Stojanovski

DISTRICT COURT OF QUEENSLAND

CITATION:

Stojanovska v Stojanovski [2019] QDC 142

PARTIES:

HRISTINA STOJANOVSKA
(applicant)

v

LJUBE STOJANOVSKI
(respondent)

FILE NO/S:

2106/17

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

20, 21 and 28 June 2019

JUDGE:

Barlow QC DCJ

ORDER:

The proceeding be adjourned for submissions on costs.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – whether provision is adequate and proper having regard to the totality of the relationship between the applicant and the deceased – the applicant was the daughter of the deceased – the applicant had made a substantial monetary contribution to the value of the deceased’s estate and had cared for the deceased what provision should be made for the applicant

SUCCESSION – ADMINISTRATION OF ESTATE –– property of the estate jointly owned by applicant (10%) and deceased (90%) – Applicant had lived in property since deceased’s death – whether applicant liable to contribute an occupation rent to the estate

Legislation

Succession Act 1981 (Qld) ss 35, 36A, 41, sch 2 pt 1

Cases

Biviano v Natoli (1998) 43 NSWLR 695, applied

Bkassini v Sarkis [2017] NSWSC 1487, applied

Callow v Rupchev (2009) 14 BPR 27,533, applied

Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, applied

Collins v Mutton [2012] NSWSC 548, applied

Re Fulop (decd) (1987) 8 NSWLR 679, applied

Hughes v National Trustees, Executors & Agency Co. of Australasia Ltd (1978-1979) 143 CLR 134, applied

Laursen v Laursen [2009] 2 Qd R 148, considered

Perpetual Trustees Queensland Ltd v Mayne [1992] QCA 417, considered

Singer v Berghouse (1994) 181 CLR 201, applied

Re Sinnot [1948] VLR 279, applied

Vigolo v Bostin (2005) 221 CLR 191, applied

W v D (2012) 115 SASR 61, considered

COUNSEL:

MK Conrick for the applicant

AD Stobie for the respondent

GR Dickson for the administrator

SOLICITORS:

Spranklin McCartney Lawyers for the applicant

Burns Law for the respondent

Gleeson Lawyers for the administrator

Introduction

1. Velika Stojanovska (“Velika”) died intestate on 3 October 2015 at the age of 65.  Until a few months before her death, she had been living with her only daughter, Hristina (“Tina”), in a house owned by them both in differing shares.  Velika is survived by Tina, Tina’s brother Igor and their father Ljube (Velika’s husband).  Velika and Ljube had been separated since late 2010.[1]

   [1]As the dispute is between members of the same family, I propose to refer to them by their given names, without meaning disrespect to any of them. 

1. Tina is now applying for adequate provision to be made for her maintenance and support out of Velika’s estate.[2]  However, she seeks that Igor’s entitlement be exonerated from any incidence of an order in her favour.[3]

   [2]Pursuant to the Succession Act 1991 (Qld), s 41(1).

   [3]In the application, Igor’s entitlement…