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Videnovic v Todorovic

Videnovic v Todorovic

Case [2023] NSWSC 242 22 March 2023

Adjournment

Jurisdiction

Notice Barring Claims

Civil Litigation & Procedure

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Videnovic v Todorovic [2023] NSWSC 242
Hearing dates: 9 February 2023
Date of orders: 22 March 2023
Decision date: 22 March 2023
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(1) Orders, pursuant to s 93(2) of the Probate and Administration Act 1898 (NSW), that the Defendant is barred from making any claim on his own, or on behalf of others who are not resident in NSW, for whom he is said to be an Attorney, against the Plaintiff as the administrator of the estate of Masinka Todorovic, who died on 4 April 2019.
(2) Orders that the Defendant pay the Plaintiff’s costs of the proceedings.
(3) Orders that to the extent that there is any difference between the costs ordered to be paid by the Defendant, the costs recovered from him, and the Plaintiff’s costs calculated on the indemnity basis, those costs be paid out of the estate of the deceased.

Catchwords:
CIVIL PROCEDURE — Hearing - Defendant litigant in person – Adjournment - Defendant applies for adjournment at the commencement of the hearing – Application opposed – Applicable principles – Procedural history relevant as is repeated suggestions to the Defendant, at various directions hearings that he should be legally represented – Whether to grant the application — Interests of justice – Application for adjournment refused
SUCCESSION – EXECUTORS AND ADMINISTRATORS – notice barring claims under s 93, following service of notice under s 92 of the Wills Probate and Administration Act 1898 – Applicable principles

Legislation Cited:
Births, Deaths and Marriages Registration Act 1955 (NSW) s 49(2)
Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60, 66
NSW Trustee and Guardian Act 2009 (NSW)
Probate and Administration Act 1898 (NSW) ss 92, 93
Uniform Civil Procedure Rules 2005 (NSW) Pt 35 reg 35.2

Cases Cited:
Al Dakhili v Al Kheurallah [2023] NSWSC 47
Alesco Corporation Limited v Te Maari [2015] NSWSC 469
Aon Risk Services Australia Pty v Australian National University (2009) 239 CLR 175; [2009] HCA 27
City of Sydney Council v Satara [2007] NSWCA 148
Duraisamy v Sydney Trains [2019] NSWCA 269
Duraisamy v Sydney Trains [2020] HCASL 8
English v Stewart [2022] NSWSC 268
Knorr v CSIRO (No 3) [2012] VSC 529
Ludwig v The Public Trustee [2006] NSWSC 890
McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470
Robertson & Anor v Byrne & Ors [2022] NSWSC 1713
Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92
Ryan v Shackel (1925) 26 SR (NSW) 17
Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47
Sheridyn Ashwood v Terence John Ashwood [2023] NSWSC 208
State Pollution Control Commission v Australian Iron and Steel Pty Ltd (No. 2) (1992) 29 NSWLR 487
UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45
Xiang bht Cao v Tong [2021] NSWSC 44

Category: Principal judgment
Parties:

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 Videnovic v Todorovic

Details

AGLC: Videnovic v Todorovic [2023] NSWSC 242
Case: [2023] NSWSC 242
Decision Date: 22 March 2023

CaseChat Overview and Summary

Videnovic v Todorovic involved a dispute between the plaintiff and the defendant regarding the administration of an estate. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought relief in relation to the defendant’s administration of the estate, while the defendant, appearing as a litigant in person, opposed the plaintiff’s claims. At the beginning of the hearing, the defendant applied for an adjournment, which the plaintiff opposed. The court was required to decide whether to grant the adjournment and to consider the principles relevant to such a decision, particularly in light of the defendant’s repeated suggestions to obtain legal representation.

The court examined the principles guiding adjournment applications, particularly in cases where a party is unrepresented. It noted the procedural history, which included multiple instances where the defendant was advised to secure legal representation. The court weighed the defendant’s right to a fair hearing against the interests of justice, including the need to avoid unnecessary delay and the importance of the plaintiff’s right to have their claims determined in a timely manner. Ultimately, the court found that granting the adjournment would not serve the interests of justice and refused the application. The court emphasised the importance of the defendant’s need to proceed with legal representation, highlighting that repeated adjournments would likely lead to further delays and prejudice to the plaintiff.

In conclusion, the court denied the defendant’s application for an adjournment and proceeded with the hearing. The final orders of the court were not explicitly detailed in the extract, but the refusal of the adjournment allowed the case to progress, with the court likely to address the substantive issues concerning the estate administration.

Orders