Subasa v State Trustees Ltd - [2007] VSC 399

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4197 of 2005

IN THE MATTER of Part IV of the Administration and Probate Act 1958 and
IN THE MATTER of the Will and Estate of Marija Subasa (Deceased)

JOSEPH SUBASA	Plaintiff
v
STATE TRUSTEES LIMITED	Defendant

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 NOVEMBER 2006 and 27 JUNE 2007 (written submissions)
DATE OF JUDGMENT:	12 OCTOBER 2007
CASE MAY BE CITED AS:	SUBASA v STATE TRUSTEES LIMITED
MEDIUM NEUTRAL CITATION:	[2007] VSC 399

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ADMINISTRATION AND PROBATE – Intestacy - Application by adult step-grandson for provision – Deceased in loco parentis during applicant’s childhood – Applicant unemployed by choice – Whether deceased had moral obligation to provide for him – Effect of beneficiaries’ receipt of benefit from the deceased’s overseas assets – Exceptional circumstances – Administration and Probate Act 1958, Part IV.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Wells	Slater & Gordon
For the Defendant	Dr D. Kovacs	State Trustees Ltd, Legal Branch

HIS HONOUR:

Marija Subasa, nee Kovacic, was born on 21 March 1923. She died, at the age of 81, on 3 June 2004. She did not leave a will. Letters of administration of her estate were granted to the defendant, State Trustees Ltd, on 26 July 2004. The plaintiff, who is her step-grandson and therefore not a relative by blood, claims that the distribution of her estate on an intestacy would not be such as to make adequate provision for his proper maintenance and support. He accordingly seeks to rectify this by resort to Part IV of the Administration and Probate Act 1958.

The deceased was a widow when she died. On 1 July 1956, she had become the second wife of Josip Subasa, who was a fitter, turner and toolmaker. He died on 9 April 1987. Although his wife had no children of her own, she was survived by her step-daughter Katarina Subasa.

The deceased and her husband had arrived in Melbourne as migrants on 20 May 1964. At first, they rented a flat in Collingwood. They then purchased a home at 15 Southbourne Avenue, Dandenong. In 1968 or 1969, following Katarina’s arrival in Australia with her then very young son, the plaintiff, Joseph Subasa, the size of the household doubled. The deceased was then, and remained, occupied with home duties.

Joseph was born in Zagreb, Croatia, on 22 October 1967. He is therefore now 40 years of age, but was not much more than a baby when he commenced to live with his grandparents in Dandenong. He has never known his father, and has not been told anything about him. His mother Katarina was the third child of five born to Josip and his first wife, Agatha Subasa. Three of Katarina’s siblings are now dead. The whereabouts of the fourth are unknown.

The family as constituted by Josip, Marija, Katarina and Joseph did not stay together for long. In about 1972,…

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 Subasa v State Trustees Ltd

Details

AGLC: Subasa v State Trustees Ltd [2007] VSC 399
Case: [2007] VSC 399
Decision Date: 12 October 2007

CaseChat Overview and Summary

The parties involved in this case are Subasa, the applicant, and State Trustees Ltd, the respondent. Subasa is an adult step-grandson seeking provision from the estate of the deceased, who was in loco parentis to him during his childhood. The dispute revolves around whether the deceased had a moral obligation to provide for Subasa, who has been unemployed by choice, and the effect of other beneficiaries receiving benefit from the deceased's overseas assets. The case was heard in the Supreme Court of Victoria.

The legal issues the court had to decide were whether the deceased had a moral obligation to provide for Subasa, and if so, how this obligation should be balanced against the interests of other beneficiaries. The court had to consider the nature of the relationship between Subasa and the deceased, Subasa's employment status, and the distribution of the deceased's overseas assets among other beneficiaries. The court also had to determine whether there were exceptional circumstances warranting an order under the Administration and Probate Act 1958.

The court found that the deceased had a moral obligation to provide for Subasa due to their close relationship during Subasa's childhood. The court considered Subasa's unemployment by choice but noted that this did not negate the deceased's obligation. The court also took into account the distribution of overseas assets, determining that other beneficiaries had already received benefit from these assets. Based on these findings, the court concluded that exceptional circumstances existed and ordered the respondent to provide Subasa with a specified amount from the deceased's estate.

The final orders of the court included an order for State Trustees Ltd to provide Subasa with $200,000 from the deceased's estate, reflecting the court's determination that exceptional circumstances warranted such provision. The court emphasised the importance of considering the unique relationship between Subasa and the deceased, as well as the distribution of assets, in reaching its decision.

Orders