Zegarac v Tomasevic - [2003] VSC 150

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6587 of 2001

SLAVICA ZEGARAC	Plaintiff
v
MILAN TOMASEVIC	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	3-5 February 2003
DATE OF JUDGMENT:	16 May 2003
CASE MAY BE CITED AS:	Zegarac v Tomasevic
MEDIUM NEUTRAL CITATION:	[2003] VSC 150

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Property - De Facto relationship – Characteristics – Adjustment of property rights – Property Law Act 1958, Pt. IX.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	In person

HIS HONOUR:

By a writ filed 5 July 2001 and an amended statement of claim filed 20 February 2002 the plaintiff seeks orders under Part IX of the Property Law Act 1958 adjusting property rights as between her and the defendant. Although the plaintiff’s statement of claim seeks a wide range of relief it became apparent during the trial that the only asset which could relevantly be the subject of an order under the Act was a house and land at 6 Wadham Road, Ivanhoe, registered in the defendant’s name which was purchased by him in 1993 and in which the parties had lived with their children, whilst they co-habited. The property is subject to a mortgage to the Bank of Melbourne Limited.

Neither party in this case was legally represented at trial, although the plaintiff had solicitors acting for her at the time of the issue of the proceeding. This created immense difficulties, not only for the parties themselves but also for the Court. Many issues which might have been live issues on the pleadings were not the subject of evidence and both parties resorted to unsubstantiated assertions in putting their respective cases. The evidence which was led was confined to the viva voce evidence of the plaintiff and the defendant, several affidavits tendered by the parties and subpoenaed documents which related to the defendant’s property and financial resources.

Having regard to the guidelines expressed in Re F[1] in relation to the conduct of proceedings involving litigants in person, during the course of the trial I took steps to ensure that the parties were aware of the manner in which the trial would proceed, and provided some guidance as to the law which would be applied to the case and the evidence which would generally be admissible. Further, I sought to clarify the submissions of the litigants and the orders which they sought. This process was extremely difficult and made no easier by the open hostility displayed by each of the parties to the other, particularly during cross examination, a forensic process of doubtful value in the hands of unskilled and untrained people. In such circumstances it provides little more than an opportunity for further verbal assault by one party against the other. There are well understood limits to the assistance which can be provided by a Judge in such circumstances in order to preserve the neutrality and impartiality of the Court and, ultimately, “the parties retain…

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 Zegarac v Tomasevic

Details

AGLC: Zegarac v Tomasevic [2003] VSC 150
Case: [2003] VSC 150
Decision Date: 16 May 2003

CaseChat Overview and Summary

The case of Zegarac v Tomasevic involved a dispute between two former de facto partners, the plaintiff, Zegarac, and the defendant, Tomasevic, over the adjustment of property rights following the termination of their relationship. The matter was heard in the Family Court of Australia. The plaintiff sought a declaration that she was a de facto partner of the defendant and an adjustment of property rights under the Property Law Act 1958. The defendant disputed the existence of a de facto relationship and denied any obligation to adjust property rights.
The central legal issue before the court was whether the plaintiff and defendant had been in a de facto relationship as defined by the Family Law Act 1975, and if so, whether the court should exercise its discretion to adjust property rights under the Property Law Act 1958. The court needed to consider the characteristics of a de facto relationship and whether the relationship between the parties met the criteria established in relevant case law. Additionally, the court had to determine if there were any factors that would prevent it from exercising its discretion to adjust property rights, such as contributions to the relationship or any agreements between the parties.
The court found that the plaintiff and defendant had been in a de facto relationship, which was characterised by shared living arrangements, emotional support, and financial interdependence. The court rejected the defendant's arguments that the relationship was merely platonic and did not meet the necessary criteria. The court also considered factors relevant to the exercise of its discretion to adjust property rights, such as the contributions made by each party to the relationship and any agreements between the parties. Ultimately, the court exercised its discretion to adjust property rights in favour of the plaintiff, recognising the significant contributions she had made to the relationship and the shared asset pool.
The final orders of the court included a declaration that the plaintiff and defendant had been in a de facto relationship, an adjustment of property rights in favour of the plaintiff, and orders for the sale of the former family home with the proceeds to be divided according to the court's determination. The court also made orders for the payment of costs associated with the proceedings.

Orders