Supreme Court
New South Wales
Medium Neutral Citation: Stojanovski v Stojanovski [2019] NSWSC 1713 Hearing dates: 28 November-2 December 2016, 17 February 2017, 31 August 2017, 1 May and 30 May-6 June 2019 Decision date: 04 December 2019 Jurisdiction: Equity Before: Robb J Decision: Direct the parties to confer, and to agree short minutes if possible, or if not, propose appropriate short minutes of order for the consideration of the Court. See pars 613 to 618
Catchwords: CONTRACTS — Formation — Agreement — Intersection of contract law with succession law — Enforceability of testamentary agreement — Agreement binding and plaintiff entitled to order that it be specifically performed — Standing of plaintiff under UCPR r 7.10(2)(b) to represent the estate for the purposes of this claim accepted — Standing of fourth defendant to resist this claim, accepted upon considerations of procedural fairness and natural justice — Enforceability of testamentary agreement upheld
SUCCESSION — Family provision — Claim by adult child — Proceedings not commenced within time — Whether sufficient cause shown to extend time — Extension of time permitted
SUCCESSION — Family provision — Claim by adult child — Claim made under Family Provision Act 1982 (NSW) — Whether adequate and proper provision made for the plaintiff — Where the course of the litigation itself over more than a decade, including and especially the amount of outstanding legal fees, has become a paramount factor in determining the material circumstances of the beneficiaries — Where plaintiff alleges that substantially all legal costs incurred are the fault of the first and fourth defendants — Where evidence shows failure of deed of release was substantially of plaintiff’s own making — Where plaintiff’s case has changed substantially over time, including by totally abandoning many claims — Where beneficiaries are in materially similar financial and personal circumstances — Consideration of whether claimant’s costs are permitted to be paid out of the deceased estate — No family provision orderedLegislation Cited: Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Family Law Act 1975 (Cth)
Family Provision Act 1982 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015
Legal Profession Uniform Law (NSW)
Limitation Act 1969 (NSW)
Real Property Act 1900 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Anderson v Hill [2017] NSWSC 1149
Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57
Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52
Boyd v Thorn (as Executrix of Estate of McAuley) [2016] NSWSC 588; (2016) 18 BPR 35,941
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56
Henry v Hancock [2016] NSWSC 71
In the marriage of Reed (1989) 98 FLR 268; 13 Fam LR 566
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Singer v Berghouse (1994) 181 CLR…
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- Case
- [2019] NSWSC 1713
- Decision Date
CaseChat Overview and Summary
The court accepted the plaintiff's standing to represent the estate for the purposes of the claim under UCPR r 7.10(2)(b) and also allowed the fourth defendant to resist the claim on grounds of procedural fairness and natural justice. The court found that the testamentary agreement was enforceable, binding the parties to its terms, and that the plaintiff was entitled to have it specifically performed. In terms of the family provision claim, the court considered the extensive litigation and the significant legal costs incurred. It found that the plaintiff had not demonstrated sufficient cause for extending the time to bring the claim and that the plaintiff's own actions had contributed to the failure of the deed of release. The court also noted that the beneficiaries were in materially similar circumstances and that the plaintiff had altered their claims substantially over time. Consequently, the court ruled that no family provision was ordered.
In summary, the court upheld the enforceability of the testamentary agreement, permitted the plaintiff to bring the claim on behalf of the estate, and rejected the plaintiff's application for family provision, primarily due to the extensive litigation, the plaintiff's own actions contributing to the failure of the deed of release, and the lack of demonstrated need for family provision given the similar circumstances of the beneficiaries.
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