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Strano v Jovcevski

Strano v Jovcevski

Case [2008] NSWSC 380 30 April 2008

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CITATION: Strano v Jovcevski [2008] NSWSC 380
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 November 2008

JUDGMENT DATE :
30 April 2008

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order that the proceedings be dismissed.
2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.
3. I order that the Defendant be entitled to recoup from the estate of the late Kenneth Kire Jovcevski (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis.
4. The exhibits may be returned.

CATCHWORDS: SUCCESSION - family provision - claim by widow - relationship of no more than nine years, characterised by numerous separations and reconciliations - various court proceedings instituted between Plaintiff and Deceased - financial and material circumstances of Plaintiff- whether Plaintiff has been left without adequate provision for her proper maintenance - actual estate of little value - claim against notional estate - prescribed transactions - importance of not interfering with reasonable expectations in relation to property - even if Plaintiff were to receive entirety of available notional estate, Plaintiff would receive no practical benefit, since that amount would go to her creditors

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Caska v Caska [1999] NSWSC 289
Thomas v Jackson [2002] NSWSC 660
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19
Diver v Neal [2008] NSWSC 304

PARTIES: Alma Strano (Plaintiff)
Steven Jovcevski (Defendant)

FILE NUMBER(S): SC 4867 of 2005

COUNSEL: Mr M. Broun QC and Mr R. Lovas (Plaintiff)
Mr L. Ellison SC (Defendant)

SOLICITORS: Graham Cheqwidden (Plaintiff)
Hancock Alldis & Roskov (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 30 April 2008

4867 of 2005 ALMA STRANO –v- STEVEN JOVCEVSKI

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 The proceedings were instituted by summons filed by the Plaintiff on 7 September 2005. Subsequently an amended summons was filed on 1 November 2007 (upon the commencement of the trial of the proceedings). By that amended summons the Plaintiff claims an order for provision for her maintenance and advancement in life out of the estate and/or notional estate of her late husband, Kenneth Kire Jovcevski (to whom I shall refer as “the Deceased”).

3 The Deceased died on 14 August 2005, aged 55 years. He left a will dated 17 November 2004, probate whereof was on 3 August 2007 granted to Steven Jovcevski, the executor named in such will (who is the Defendant to the present proceedings).

4 The Plaintiff and the Deceased met in 1995, and commenced to reside together in the Deceased’s residence at 157 Derribong Road, Cordeaux Heights (“the Cordeaux Heights property”) on 30 January…

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 Strano v Jovcevski

Details

AGLC: Strano v Jovcevski [2008] NSWSC 380
Case: [2008] NSWSC 380
Decision Date: 30 April 2008

CaseChat Overview and Summary

Strano v Jovcevski was a case in which the widow, Strano, sought to make a claim under the Family Provision Act 1969 (NSW) for inadequate maintenance. The dispute arose from the estate of the deceased, Jovcevski, who had left little in his will for his widow. The case was heard in the Supreme Court of New South Wales. The legal issues that the court needed to decide included whether the relationship between the plaintiff and deceased was of a nature that justified a claim under the Act, and if the plaintiff had been left without adequate provision for her proper maintenance. The court also needed to consider the financial and material circumstances of the plaintiff and the value of the actual estate.

The court found that the relationship between the plaintiff and deceased was of no more than nine years, and was characterised by numerous separations and reconciliations. The court noted that there had been various court proceedings instituted between the parties during their relationship. The court found that the actual estate of the deceased was of little value, and that the plaintiff's claim was therefore against the notional estate. The court considered the importance of not interfering with reasonable expectations in relation to property, and found that even if the plaintiff were to receive the entirety of the available notional estate, she would receive no practical benefit, since that amount would go to her creditors. The court ultimately found that the plaintiff had not been left without adequate provision for her proper maintenance.

The final orders of the court were that the plaintiff's claim under the Family Provision Act 1969 (NSW) be dismissed. The court found that the relationship between the parties was not of a nature that justified a claim under the Act, and that the plaintiff had not been left without adequate provision for her proper maintenance. The court also noted that even if the plaintiff were to receive the entirety of the available notional estate, she would receive no practical benefit, since that amount would go to her creditors. The court's decision highlights the importance of considering the nature of the relationship between the parties, as well as the financial and material circumstances of the plaintiff, when deciding claims under the Family Provision Act.

Orders