The Public Trustee as executor of the Estate of Branimir IVCEVIC v Nydegger
[2012] WASC 44
•13 FEBRUARY 2012
THE PUBLIC TRUSTEE as executor of the Estate of BRANIMIR IVCEVIC -v- NYDEGGER [2012] WASC 44
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 44 | |
| Case No: | CIV:1770/2009 | 21 DECEMBER 2011 | |
| Coram: | MASTER SANDERSON | 13/02/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRUSTEE as executor of the Estate of BRANIMIR IVCEVIC ELISABETH NYDEGGER |
Catchwords: | Wills Application by trustee to bar claim against estate Turns on own facts |
Legislation: | Nil |
Case References: | The Public Trustee as Administrator of the Estate of Milutin Stanimirovic v Cenin (Unreported, WASC, Library No 990177, 18 March 1999) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ELISABETH NYDEGGER
Defendant
Catchwords:
Wills - Application by trustee to bar claim against estate - Turns on own facts
Legislation:
Nil
Result:
Application granted
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Category: B
Representation:
Counsel:
Plaintiff : Ms H J Finch
Defendant : In person
Solicitors:
Plaintiff : Public Trustee (WA)
Defendant : In person
Case(s) referred to in judgment(s):
The Public Trustee as Administrator of the Estate of Milutin Stanimirovic v Cenin (Unreported, WASC, Library No 990177, 18 March 1999)
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1 MASTER SANDERSON: The plaintiff is the executor of the estate of the late Branimir Ivcevic. The defendant claims to be a creditor of the estate. By originating summons filed 23 April 2009 the plaintiff sought the following orders:
1. The claims which have been made and any claim which may be made by the Defendant against the Plaintiff or to or against the estate of the deceased in respect of:
(a) the obligation of the deceased to pay the Defendant monies associated with the common costs of living together including rent and/or gas and or food and/or electricity pursuant to any oral or written arrangement;
(b) the alleged contributions, financial and otherwise, made by the Defendant to the deceased's estate, including but not limited to loans or contributions to the deceased while he was alive for travel or any other matter; and/ or
(c) the alleged contributions, financial and otherwise, made by the Defendant for the benefit of the deceased's wellbeing, happiness and quality of life including but not limited to the provision of care, assistance in day-today activities and domestic responsibilities, companionship and support; and/ or
(d) the alleged pooling of the Defendant's financial and non-financial resources with that of the deceased, the proceeds of which were allegedly applied towards household expenditure and/or for the purpose of the Defendant and the deceased's mutual benefit; and/ or
(e) the amounts which the Defendant claims as debts being owed to her by the deceased as described in your letter of 29 October 2006 which total $25,800.00 plus interest from May 2002 at 5.5% to date and continuing.
(f) any other claim with respect to the alleged monies advanced or loaned to the deceased, as stated in paragraph (d) above
be barred.
2. The costs of this application be paid by the Defendant.
2 The application is supported by an affidavit of Phillip Arnold Bragg. Mr Bragg is the Acting Director of Trustee Services at the Public Trustee. The defendant did not file any affidavit evidence. She did lodge with the court a document which she describes as 'Statement to the Supreme
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- Court'. This document sets out her claim. It is supported by a number of annexures which purport to show the deceased was indebted to the defendant. The defendant says she is a creditor of the deceased's estate in an amount of $40,889.41.
3 The defendant says she and the deceased met in 1972. At first they were friends. At the time both the defendant and the deceased were living in South Hedland. The deceased married and he and his wife moved from South Hedland to Port Hedland. The defendant and the deceased then drifted apart.
4 They met up again in or about 1998. By that stage the deceased had been separated from his wife for over six years. The defendant and the deceased then commenced to reside together. As I understand the defendant's position they were in a de facto relationship. The defendant says when she began living with the deceased they agreed the household costs would be shared equally. Nothing was ever put in writing and it is difficult to know whether any part of that agreement was kept by the deceased. In any event it is the defendant's position she is entitled to be paid an amount of money for the period of time she cohabited with the deceased.
5 The defendant also says the deceased made promises to her with respect to superannuation. These promises appear rather vague and as I understand the defendant's position some form of payment was to be made once the deceased's daughter turned 18. How much was to be paid, to whom it was to be paid, and how the obligation arose is unclear.
6 The annexure to the documents filed by the defendant purport to calculate the amount she says she is owed from the deceased's estate. None of the claimed amounts is supported by any documentation. The best that can be said is they are estimates of what the defendant believes are amounts that she is owed. She has also claimed interest on the alleged debt although the basis upon which this interest is claimed is not clear.
7 In my view there is no doubt an order ought be made as sought by the Public Trustee. The Public Trustee has complied with all the requirements to have any claims barred under s 64 of the Trustees Act 1962 - 1978 (WA): see The Public Trustee as Administrator of the Estate of Milutin Stanimirovic v Cenin (Unreported, WASC, Library No 990177, 18 March 1999). The defendant has been given the opportunity to begin proceedings to enforce her claims but has not done so. The statutory provision is intended to allow a person or representative
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- to distribute an estate without fear of litigation in these circumstances. That is what should now be done.
8 It is important to note the way in which this matter has proceeded. The defendant has been invited to bring a claim and has not done so. The most favourable outcome for the defendant when answering this application would have been to dismiss it or more likely to set a time within which any claim could be brought. No evidence has been put on by the defendant which would justify either of those two outcomes. But even taking into account the most favourable version of the facts so far as the defendant is concerned there is nothing which in my view could lead to a claim by the defendant being successfully maintained. It is therefore appropriate to make the orders sought.
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