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Stojanovski v Stojovski

Stojanovski v Stojovski

Case [2016] NSWSC 976 14 July 2016

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Supreme Court

New South Wales

Medium Neutral Citation: Stojanovski v Stojovski [2016] NSWSC 976
Hearing dates: 20 and 21 June 2016
Date of orders: 14 July 2016
Decision date: 14 July 2016
Jurisdiction: Equity
Before: Hallen J
Decision:
Order that the Defendant be appointed to conduct the proceedings and represent the deceased’s estate and notional estate for the purposes of these proceedings.

Order that the Plaintiff’s Summons be dismissed.
Order that each party is to bear her, and his, own costs, respectively, of the proceedings.
Catchwords: SUCCESSION – FAMILY PROVISION – Claim for family provision order by daughter of the deceased – Proceedings commenced outside time prescribed by the Act - The Defendant, a son of the deceased – Deceased died intestate - Administration not granted – No actual estate at the date of the hearing – No provision for the Plaintiff on intestacy - Only property that is sought to be designated as notional estate, held by Defendant as the sole registered proprietor – Defendant the proper person to represent the estate and notional estate for the purpose of the proceedings - Whether transaction that took effect within 3 years before the date of the death of the deceased was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased for the maintenance, education or advancement in life of the Plaintiff – Whether order designating property as notional estate should be made - Whether other special circumstances - Designating order not able to be made with the result that there is no actual or notional estate out of which order for provision may be made.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Legal Profession Act 2004 (NSW)
Real Property Act 1900 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Carey v Robson; Nicolls v Robson (No 2) [2009] NSWSC 1199
Carr v Douglass [2016] NSWSC 854
Charnock v Handley [2011] NSWSC 1408
Commonwealth of Australia v Gretton [2008] NSWCA 117
Friend v Brien (No 2) [2014] NSWSC 614
Galt v Compagnon (NSWSC, 24 February, 1998, unrep)
Gillett v Nelson (No 2) [2014] NSWSC 580
Harkness v Harkness (No 2) [2012] NSWSC 35
Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
Hildebrandt v Soncini [2007] NSWSC 1227
Hills v Chalk [2008] QCA 159; [2009] 1 Qd R 409
Hinderry v Hinderry [2016] NSWSC 780
Kastrounis v Foundouradakis [2012] NSWSC 264
Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146
Manning v Matsen [2015] NSWSC 1801
Moore v Randall [2012] NSWSC 184
Phillips v James [2014] NSWCA 4
Re Salmon, Deceased [1981] Ch 167
Stone v Stone [2016] NSWSC 605
Sung v Malaxos (No 2) [2015] NSWSC 290
Thomas…

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.

Continue reading Stojanovski v Stojovski

Details

AGLC: Stojanovski v Stojovski [2016] NSWSC 976
Case: [2016] NSWSC 976
Decision Date: 14 July 2016

CaseChat Overview and Summary

The case of Stojanovski v Stojovski involved a claim for a family provision order by the daughter of the deceased, Stojanovski. The defendant, Stojovski, is a son of the deceased who died intestate. The proceedings were initiated beyond the time prescribed by the relevant Act. At the time of the hearing, there was no actual estate, and no provision had been made for the plaintiff under intestacy. The only property that was sought to be designated as a notional estate was held by the defendant as the sole registered proprietor.

The court was required to determine whether the transaction that occurred within three years before the deceased's death was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the deceased's estate for the maintenance, education, or advancement in life of the plaintiff. The court also needed to consider whether an order designating the property as a notional estate should be made and whether other special circumstances existed. Additionally, the court had to decide whether a designating order should not be made with the result that there was no actual or notional estate out of which an order for provision could be made.

The court held that the defendant was the proper person to represent the estate and notional estate for the purposes of the proceedings. The transaction in question was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate for the plaintiff's benefit. However, the court found that designating the property as a notional estate would result in there being no actual or notional estate out of which an order for provision could be made. Consequently, the court concluded that a designating order should not be made and dismissed the claim for a family provision order.

The final orders of the court were that the claim for a family provision order be dismissed and that the plaintiff pay the defendant's costs of the proceedings.

Orders