Legal Research
Cases
Stojanovski v Stojanovski

Stojanovski v Stojanovski

Link copied

Case Copied 4 December 2019 46 min read

Contents

On this page

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 ordered
Legislation 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…

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.

Keep reading for free

Create a free CaseChat account to read Stojanovski v Stojanovski and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 1713
Decision Date: 04 December 2019

CaseChat Overview and Summary

The case of Stojanovski v Stojanovski involved a dispute over the enforceability of a testamentary agreement and the making of family provision claims under the Family Provision Act 1982 (NSW). The plaintiff, as an adult child, sought an order for specific performance of the agreement and to have the agreement binding, while also requesting family provision from the deceased's estate. The defendants included the estate and other family members who contested the plaintiff's claims. The primary issues before the court were the enforceability of the testamentary agreement, the plaintiff's standing to bring the claim, and whether the plaintiff had made sufficient cause to extend the time for making the claim. Additionally, the court had to determine whether the plaintiff had been provided with adequate and proper provision from the deceased's estate.

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.

Orders