Stojic v Stojic - [2019] NSWSC 23

Supreme Court

New South Wales

Medium Neutral Citation: Stojic v Stojic [2019] NSWSC 23
Hearing dates: 14 December 20082018
Date of orders: 14 December 2018
Decision date: 14 December 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Orders pursuant to UCPR r 7.18(l1)(a) that Stephen Davies be appointed as Tutor for the defendant, Simon Slavko Stojic.
2.   Orders that the title of these proceedings be amended to: “Ivanna Ann-Marie Ferenc Stojic and Ivan Matthew Stojic v. Stephen Davies as Tutor for Simon Slavko Stojic”.
3. Orders, pursuant to UCPR r 7.14(2) that Mr Davies as Tutor be at liberty to carry on the Defence of the Claim in these proceedings and be at liberty to carry on the Cross Claim in these proceedings, notwithstanding the absence of a solicitor acting on the record for him in these proceedings as Tutor for the Defendant defendant and Cross Claimant in these proceedings.
4. Dispenses with the certificate otherwise required by UCPR r 7.16(b).
5.   Notes the associated proceedings nos. 2015/60779, 2015/96897, 2015/150539, 2015/166103 and 2015/174075.
6. Orders that the proposed settlement of these proceedings 2014/315956 by the defendant, who is a person under a legal incapacity (being a person who on 30 November 2018 was remanded in custody in accordance with s 14(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW)), being the settlement comprised in the orders provided for in paragraphs 8 to 14 of these Orders and Notes and in the Deeds of Agreement mentioned below, touching and concerning these proceedings, be approved, pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).
7. Orders that the proposed settlement agreement comprising the Deeds of Agreement in exhibits SB1 and SB2 of the affidavit of Stephen Davies affirmed 11 December 2018, between the defendant, who is a person under a legal incapacity (being a person who on 30 November 2018 was remanded in custody in accordance with s 14(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW))), the plaintiffs and Jolene Yolande Stojic be approved, pursuant to s 75(2) of the Civil Procedure Act 2005 (NSW).
8.   ORDER that the Will dated 23 May 2014 (“the Will”) made by Ivan Stojic (“the deceased”), who died on 13 June 2014 in Croatia, be admitted to probate in solemn form.
9.   ORDER that administration of the Will be granted to the plaintiffs, Ivan Matthew Stojic (“Matthew”) and Ivanna Ann-Marie Ferenc Stojic.
10.   ORDER that the proceedings be referred to the Registrar for completion of the grant, subject to compliance with the Probate Rules.
11.   ORDER that the cross claim be dismissed.
12.   ORDER that the plaintiffs’ costs be paid from the estate on the indemnity basis.
13.   Makes no order as to the defendant’s costs with the intent that the defendant pays his own costs.
14.   NOTES: That the parties have agreed to enter into a Deed of Agreement.
15.   NOTES: That on 13 December 2018 the Family Court of Australia approved the settlement as contained in the…

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 Stojic v Stojic

Details

AGLC: Stojic v Stojic [2019] NSWSC 23
Case: [2019] NSWSC 23
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of Stojic v Stojic involved a dispute between the parties in the Supreme Court of New South Wales. The respondent, Stojic, sought the appointment of a tutor to represent the appellant in the proceedings, as the appellant was deemed to be of unsound mind and unable to manage his own affairs. This was necessitated by the appellant's involvement in both the original claim and a cross-claim. The respondent argued that the appointment of a tutor was essential to carry on the defence of the claim and cross-claim on behalf of the appellant.

The court was required to determine whether the respondent had the authority to apply for the appointment of a tutor under the Civil Procedure Act 2005 (NSW). Additionally, the court had to consider whether the settlement or discontinuance of the proceedings required the approval of the court, as per sections 75 and 76 of the Civil Procedure Act 2005 (NSW). Furthermore, the court needed to address the issue of granting probate in solemn form for the estate of the appellant.

The court held that the respondent had the authority to apply for the appointment of a tutor, as the appellant was of unsound mind and incapable of managing his own affairs. The court found that the settlement or discontinuance of the proceedings did not require the approval of the court, as the respondent had the authority to act on behalf of the appellant. Additionally, the court granted the probate in solemn form for the estate of the appellant. Consequently, the court ruled in favour of the respondent and granted the appointment of a tutor to represent the appellant in the proceedings.

Orders