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 distributionLegislation Cited: Family Provision Act 1982 (NSW), ss 6(1), 7, 9, 16
Real Property Act 1900 (NSW), s 42Cases 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 11Category: Principal judgment Parties: Vase Tanev (Plaintiff)
Traiko Tanevski (First Defendant)
Blagica Pandilovski (Second Defendant)Representation: Counsel:
Solicitors:
D Liebhold (Plaintiff)
J Lucy (Defendants)
Thomas Tarmo & Co (Plaintiff)
Berala Law Group (Defendants)
File Number(s): 2016/116638 Publication restriction: Nil
Judgment
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These proceedings concern the estate of the late Dusanka Tanevski who died in 2005.
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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.
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The deceased’s husband, Cvetan, migrated to Australia in 1971. In 1973 he was joined by Traiko. In March 1974 the…
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- AGLC
- Tanev v Tanevski [2017] NSWSC 1301
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- [2017] NSWSC 1301
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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