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Tanev v Tanevski

Tanev v Tanevski

Case [2017] NSWSC 1301 28 September 2017

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Supreme Court

New South Wales

Medium Neutral Citation: Tanev v Tanevski [2017] NSWSC 1301
Hearing dates: 21, 22, 23 August 2017
Date of orders: 28 September 2017
Decision date: 28 September 2017
Jurisdiction: Equity - Family Provision List
Before: Parker J
Decision:
Proceedings dismissed

Catchwords: Equity – equitable estoppel – alleged promises made by husband of deceased that property would pass to plaintiff – promises not established on the evidence – deceased not party to any promises on the evidence – indefeasibility
Succession – family provision – claim made nine years after prescribed period – extension of time – “sufficient cause” – estate not distributed – lack of knowledge of ability to make family provision claim during prescribed period – discretion – interests of justice – onus – prejudice to defendants in meeting claim
Succession – family provision – will providing for property to be divided equally between children – relevance of “needs” – community standards – propriety of equal distribution
Legislation Cited: Family Provision Act 1982 (NSW), ss 6(1), 7, 9, 16
Real Property Act 1900 (NSW), s 42
Cases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Bruce v Greentree [2015] NSWSC 1611
Cooper v Dungan (1976) 9 ALR 93
De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep)
Evans v Braddock [2015] NSWSC 249
Hughes v Sharp [2017] NSWSC 962
Kohari v NSW Trustee & Guardian [2017] NSWSC 1080
Madden-Smith v Madden [2012] NSWSC 146
Re Dallaway [1982] 3 All ER 118; 1 WLR 756
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Stott v Cook (1960) 33 ALJR 447
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Category: Principal judgment
Parties: Vase Tanev (Plaintiff)
Traiko Tanevski (First Defendant)
Blagica Pandilovski (Second Defendant)
Representation:
Counsel:
D Liebhold (Plaintiff)
J Lucy (Defendants)
Solicitors:
Thomas Tarmo & Co (Plaintiff)
Berala Law Group (Defendants)

File Number(s): 2016/116638
Publication restriction: Nil

Judgment

These proceedings concern the estate of the late Dusanka Tanevski who died in 2005.
The deceased was born in Macedonia (then part of Yugoslavia) in June 1929. She married her husband, Cvetan Tanevski, in Macedonia and they had four children. Their oldest son, Janko Tanevski, was born in 1950. He lives in Macedonia and has played no part in the proceedings. The second child, Traiko Tanevski, was born in June 1953. He is the first defendant. Their third child, Blagica Pandilovski, was born in May 1956. She is the second defendant. Their youngest child, who was born Vase Tanevski, but is now known by the surname Tanev, is the plaintiff. He was born in February 1959. For convenience and without disrespect, I will refer to the members of the family, apart from the deceased, by their Christian names.
The deceased’s husband, Cvetan, migrated to Australia in 1971. In 1973 he was joined by Traiko. In March 1974 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 Tanev v Tanevski

Details

AGLC: Tanev v Tanevski [2017] NSWSC 1301
Case: [2017] NSWSC 1301
Decision Date: 28 September 2017

CaseChat Overview and Summary

In the case of Tanev v Tanevski, the plaintiff sought relief under the Family Provision Act 1982 (Vic), claiming that the deceased made promises to her that certain property would pass to her. The deceased’s husband, who was one of the defendants, was alleged to have made these promises, which were not substantiated on the evidence. The dispute centred on the applicability of equitable estoppel and the indefeasibility of title. The court also had to consider whether there was sufficient cause to extend the statutory time limit for making a family provision claim, which was nine years past the prescribed period.

The court had to decide if the deceased’s husband had made any promises to the plaintiff that the property would pass to her, and if these promises could be enforced via equitable estoppel. Additionally, the court needed to assess whether the plaintiff had a valid claim for family provision, given that it was made well outside the statutory period, and whether the estate had been distributed in a manner consistent with the will. The court also had to consider the relevance of the "needs" of the plaintiff in the context of the family provision claim, as well as the propriety of the equal distribution of the property as stipulated in the will.

The court found that there was insufficient evidence to establish that the deceased’s husband made any promises to the plaintiff regarding the property. Consequently, the claim for equitable estoppel was dismissed. The court also determined that there was no sufficient cause to extend the time limit for the family provision claim, as the plaintiff had not demonstrated a lack of knowledge of her ability to make the claim within the prescribed period. The court held that the interests of justice did not support extending the time limit, and the plaintiff’s claim was therefore dismissed. The court further found that the equal distribution of the property as per the will was appropriate, considering community standards and the statutory requirements.

The court ordered that the plaintiff’s claim for equitable estoppel and her application for an extension of time to make a family provision claim were dismissed. The court also upheld the distribution of the estate as per the deceased's will.

Orders