Stojic v Stojic - [2018] NSWSC 723

Supreme Court

New South Wales

Medium Neutral Citation: Stojic v Stojic [2018] NSWSC 723
Hearing dates: 08/05/2018
Date of orders: 08 May 2018
Decision date: 08 May 2018
Jurisdiction: Equity - Probate List
Before: McDougall J
Decision:
Plaintiffs to be appointed as administrators pending hearing.

Catchwords:
WILLS AND ESTATES – disputed probate hearing – application for plaintiffs to be appointed as administrators of will pending hearing – consideration of principle in De Chatelain that a party to the proceedings will ordinarily not be appointed administrator – where any risk of conflict is more theoretical than real – where urgency surrounds the application – where no proper alternative other than plaintiffs – discretionary exercise tips in favour of appointing the plaintiffs – application granted.
CONTEMPT – defendant in significant contempt of court orders – where no attempt made to purge the contempt – where the contempt relates directly to subject matter of proceedings – defendant can oppose relief sought by plaintiffs but cannot be heard to propound himself as candidate for administrator.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Gray v Hart [2010] NSWSC 55
Griffin v Ackroyd [1925] P 38
De Chatelain v De Pontigny (1859) 164 ER 616
Stokes v McCourt [2013] NSWSC 1014
Category: Procedural and other rulings
Parties: Ivanna Ann-Marie Ferenc Stojic (First Plaintiff)
Ivan Mathew Stojic (Second Plaintiff)
Simon Stojic (Defendant)
Representation:
Counsel:
D Smallbone (Plaintiffs)
R Wilson SC / C Birtles (Defendant)
Solicitors:
Prime Lawyers (Plaintiffs)
Teece Hodgson & Ward (Defendant)

File Number(s): 2014/315956

Judgment (EX TEMPORE – REVISED 17 MAY 2018)

HIS HONOUR: The plaintiffs, to whom I shall refer respectively as Ivanna and Matthew, and the defendant, Simon, are three of the children of the late Ivan Stojic (the deceased). He had two other children, Anton and Marijan.
The deceased made at least three wills. The last of those, purportedly made on 6 June 2014, can be disregarded. The penultimate will, dated 23 May 2014, and the preceding will, dated 4 November 2013, are in contest.
The 2013 will appointed Simon to be executor and nominated Anton, Simon, Matthew and Ivanna (in that order) as beneficiaries. It provided for the establishment of a trust which would not vest for twenty years after the death of the deceased. The trust fund was to be held upon trust to pay income to the beneficiaries from time to time, and on the vesting day, any undistributed income together with capital. The will declared that the deceased had made no provision for Marijan nor his then wife (the mother of Marijan, to whom I shall refer as Jagoda), because he had made provision for them from the assets in Croatia and otherwise in his lifetime.
The 2014 will (by which I mean the will made on 23 May 2014) appointed Anton to be executor and nominated Anton, Matthew and Ivanna as beneficiaries. It contained a similar trust arrangement (as to income and as to capital) and a similar statement…

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 [2018] NSWSC 723
Case: [2018] NSWSC 723
Decision Date: 08 May 2018

CaseChat Overview and Summary

The matter before the court involved a dispute over the validity of a will and the appointment of administrators. Stojic, the deceased, left a will that named the plaintiffs as executors and beneficiaries. The defendant contested the will's validity and sought to be appointed as an administrator. The plaintiffs applied for themselves to be appointed as administrators of the will pending the hearing of the dispute. The court was tasked with determining whether the plaintiffs should be appointed despite the principle that a party to the proceedings will not ordinarily be appointed as an administrator.

The legal issue before the court was whether to depart from the principle in De Chatelain that a party to the proceedings will not ordinarily be appointed as an administrator. The court considered the risk of conflict, which it found to be more theoretical than real, and the urgency of the application. The court held that no proper alternative to the plaintiffs existed, and the urgency of the application warranted a departure from the principle. The court concluded that the discretionary exercise tipped in favour of appointing the plaintiffs as administrators.

The court granted the application for the plaintiffs to be appointed as administrators of the will pending the hearing. The court found that the risk of conflict was more theoretical than real and that there was no proper alternative to appointing the plaintiffs. The urgency of the application also warranted a departure from the principle in De Chatelain. The court held that the defendant's significant contempt of court orders did not preclude the plaintiffs from being appointed as administrators.

The final orders of the court were that the plaintiffs be appointed as administrators of the will pending the hearing of the dispute. The court also noted that the defendant's significant contempt of court orders did not preclude the plaintiffs from being appointed as administrators. The court held that the defendant could oppose relief sought by the plaintiffs but could not be heard to propound himself as a candidate for administrator.

Orders