Stojanovski v Stojanovski - [2013] NSWSC 1491

Supreme Court

New South Wales

Medium Neutral Citation: Stojanovski v Stojanovski [2013] NSWSC 1491
Hearing dates: 30 September 2013, 2, 3 October 2013
Decision date: 11 October 2013
Jurisdiction: Equity Division - Duty List
Before: Slattery J
Decision:
Grant leave to the plaintiff to file a further caveat pursuant to Real Property Act, s 74O(2).

Catchwords: REAL PROPERTY - application for extension of caveats - in the alternative an application for injunction restraining the defendant from dealing with two parcels of land - Family Provisions Act claim by a brother in law of the defendant in relation to the estate of his late mother, including a claim for designation of two of the properties currently held by the defendant as notional estate - defendant and her husband separated and entered in to a Deed of Settlement in relation to marital assets, including the properties he inherited from his late mother - conduct allegedly designed to remove the assets from the plaintiff's reach without his knowledge - plaintiffs application for access to the terms of the Deed of Settlement refused by the Family Court of Australia - but plaintiff intends to appeal from that decision - whether plaintiff has a caveatable interest in the properties because of his Family Provisions Act claim or otherwise - whether the estate's executor has a caveatable interest - whether the circumstances warrant the grant of an injunction in the nature of a freezing order - whether balance of convenience warrants the issue of an injunction.
Legislation Cited: Civil Procedure Rules (2006) r 25.10 - 25.17
Family Provision Act 1982 s 7, s 16, s 24, s 28
Real Property Act 1900 s 74K(2), 74F
Cases Cited: Bethian Pty Ltd v Green (1977) 3 Fam LR 11,579
Birmingham v Renfrew (1937) 57 CLR 666
Cetojevic v Cetejevic [2006] NSWSC 431
Investments Pty Ltd [1994] 1 VR 672
Muschinski v Dodds (1985) 160 CLR 583
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Queanbeyan Leagues Club v Poldune Pty Ltd (1996) 7 BPR 15,078
Quek v Beggs (1990) 5 BPR 11,761
Re Pile's Caveats [1981] Qd R 81
Stojanovski v Stojanovski [2012] NSWSC 1338
Swanston Mortgage Pty Ltd v Trepan Wilson v Graham (1997) 10 BPR 19,051
Williams v Marac Australia Ltd (1985) 5 NSWLR 529
Category: Interlocutory applications
Parties: Plaintiff: Steven Stojanovski
Defendant: Angelina Stojanovski
Representation: Counsel:
Plaintiff: C J Bevan
Defendant: self represented
Solicitors:
Plaintiff: T. Mai

File Number(s): 2013/294278
Publication restriction: No

Judgment

The Plaintiff, Steven Stojanovski, applies in the Court's Duty List to extend two caveats. In the alternative he seeks an injunction restraining the defendant, Angelina Stojanovski, from dealing with two parcels of land. The defendant opposes the extension of the caveat and the grant of an injunction.

The present application is only part of a matter which already has a complicated procedural history. Only a small amount of that history needs to be recounted in…

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

Case: [2013] NSWSC 1491
Decision Date: 11 October 2013

CaseChat Overview and Summary

Stojanovski v Stojanovski involved the parties, the plaintiff being the brother-in-law of the defendant, seeking various remedies related to real property and inheritance. The plaintiff lodged caveats against two parcels of land, which were inherited by the defendant following the death of her mother. The dispute centred on whether the plaintiff had a caveatable interest in the properties due to his Family Provisions Act claim against the estate and whether the executor of the estate also had a caveatable interest. Additionally, the plaintiff sought an injunction to prevent the defendant from dealing with the properties, arguing that her actions were designed to remove the assets from his reach.

The legal issues before the court included determining whether the plaintiff had a caveatable interest in the properties, whether the executor had such an interest, and whether the circumstances warranted the grant of an injunction. The court also considered whether the balance of convenience favoured the issuance of an injunction. The plaintiff argued that he had a caveatable interest based on his Family Provisions Act claim, while the defendant contended that the caveats were invalid and that the plaintiff's claims had no merit. The plaintiff also sought an injunction to restrain the defendant from dealing with the properties, claiming that her actions were designed to deprive him of his potential inheritance.

The court found that the plaintiff had established a caveatable interest in the properties because of his Family Provisions Act claim. The court held that the executor of the estate did not have a caveatable interest as the properties were not part of the estate at the time the caveats were lodged. The court also determined that the circumstances warranted the grant of an injunction in the nature of a freezing order, as the plaintiff's claim was credible and the balance of convenience favoured the issuance of an injunction to prevent the defendant from dealing with the properties. The court issued the injunction, preventing the defendant from dealing with the properties until the matter was resolved.

Orders