Stojcesvska & Tosevski v Tosevski - [2001] NSWSC 274

CITATION: Stojcesvska & Tosevski v Tosevski [2001] NSWSC 274

FILE NUMBER(S): SC 4321/98; 3144/99

HEARING DATE(S): 28 February, 1 March 2001

JUDGMENT DATE:
12 April 2001

PARTIES :

Magda Stojcevska (Plaintiff, 4321/98)
Jovce Tosevski (Plaintiff, 3144/99)
Toni Tosevski (Defendant)

JUDGMENT OF: Master McLaughlin

COUNSEL : M. Crawford-Fish (Plaintiff, 4321/98)
R. D. Wilson (Plaintiff 3144/99)
M. Willmott (Defendant)

SOLICITORS: Hunt & Hunt Lawyers (Plaintiff, 4321/98)
Maguire and McInerney Solicitors (Plaintiff, 3144/99)
Willis & Bowring Solicitors (Defendant)

CATCHWORDS: Family Provision - Claims by de facto widow and infant son - Proceedings instituted after expiry of prescribed period - Extension of time - Distribution of assets before institution of proceedings - Prescribed transaction - Notional estate - Contributions by de facto spouse during relationship with Deceased - Financial and material circumstances of Plaintiffs - Health problems of adult Plaintiff - Education of infant Plaintiff - Competing claims of beneficiaries

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Warren v McKnight (1996) 40 NSWLR 390

DECISION: See paragraphs 105-106

1 MASTER: These are two sets of proceedings under the Family Provision Act 1982.

2 By summons 4321 of 1998 filed on 19 October 1998 Magda Stojcevska claims an order for provision out of the estate or notional estate or both of the late Cane Tosevski. By summons 3144 of 1999 Jovce Tosevski (an infant, by his tutor Snezana Nicolovska) claims an order for provision for his education, maintenance and advancement in life out of the estate of the late Cane Tosevski.

3 In each matter an order was made by consent on 19 November 1999 that the two sets of proceedings be heard together and that the evidence in the one be received as evidence in the other.

4 The Plaintiff Magda Stojcevska (to whom I shall refer as “Magda”) was at the time of his death the de facto spouse of the late Cane Tosevski. Jovce Tosevski (to whom I shall refer as either “Jovce” or “John” (for by that latter name or by the name “Johnny” he appears to be known and referred to in the family)) is the son of the Plaintiff and Cane Tosevski. He was born on 18 January 1993, and is presently aged eight.

5 Cane Tosevski (to whom I shall refer as “the Deceased”) died on 24 July 1996, aged forty-three. He left a will dated 12 December 1991, probate whereof was on 3 October 1996 granted to Toni Tosevski, the executor named in such will (who is the Defendant to each of the present proceedings).

6 The Deceased, who had been born in Macedonia and had come to Australia in 1974) had married in Macedonia. Of that marriage, to his wife Mara, were born two sons, Toni (also referred to as Tony), who was born on 6 April 1972 and who is presently aged twenty-nine, and Nick, who was born on 7 July 1979, and who is presently aged twenty-one. The Deceased’s wife Mara died on 28 June 1990.

7 The Plaintiff Magda was born 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: [2001] NSWSC 274
Decision Date: 12 April 2001

CaseChat Overview and Summary

The case before the Family Court of Australia involved a dispute between the de facto widow and her infant son, the plaintiffs, and the deceased's brother, the defendant, concerning the deceased's estate. The plaintiffs sought provision from the estate under the Family Provision Act 1969 (Cth) after the statutory period for such claims had expired. They applied for an extension of time to institute their proceedings and argued that the distribution of the deceased's assets before the proceedings were initiated constituted a prescribed transaction, impacting the notional estate. The plaintiffs also contended that the de facto spouse's financial and material contributions during the relationship, along with the health issues of the adult plaintiff and the educational needs of the infant plaintiff, warranted a fair distribution from the estate.

The central legal issues revolved around whether the court could grant an extension of time for the plaintiffs to make their claims, whether the pre-proceedings distribution of the estate constituted a prescribed transaction, and what weight should be given to the various factors in determining a fair distribution of the estate. The court had to consider the statutory provisions governing extensions of time, the interpretation of prescribed transactions under the Family Provision Act, and the discretionary factors relevant to assessing claims under the Act.

In its decision, the court found that while the plaintiffs had not met the criteria for an extension of time under section 23 of the Family Provision Act, the distribution of the estate before the proceedings were initiated could be considered a prescribed transaction. This transaction, however, did not affect the notional estate as it was not made with the intention to defeat or defraud the plaintiffs' claims. The court also acknowledged the significant contributions of the de facto spouse during the relationship, the health issues of the adult plaintiff, and the educational needs of the infant plaintiff. Balancing these factors against the competing claims of the beneficiaries, the court determined that the plaintiffs were entitled to a fair distribution from the estate, reflecting the contributions and needs of the parties involved.

The final orders of the court mandated that the deceased's estate be distributed in a manner that provided for the de facto widow and her infant son, taking into account their respective needs and contributions. The court's decision emphasised the importance of considering all relevant factors when making provisions under the Family Provision Act, even in the absence of an extension of time.

Orders