The Estate of Kata Sutic [2021] NSWSC 905

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Kata Sutic [2021] NSWSC 905 Hearing dates: 21 June 2021 Date of orders: 30 June 2021 Decision date: 30 June 2021 Jurisdiction: Equity Before: Rein J Decision: See [28], [30]-[31], [35]-[36], [39] and [40] Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch – Plaintiffs seek dismissal of Defendant's cross claim for want of prosecution and summary judgment on the Plaintiffs' Amended Statement of Claim – the proceedings concern the distribution of the Estate of the First Plaintiff's sister (who is the Second Plaintiff and Defendant's great aunt) – the Plaintiffs allege the Defendant has abandoned her claim. The Defendant's solicitor ceased to act in December 2020 and the Defendant has not taken part in the proceedings since – all parties live in Serbia and there are ongoing proceedings regarding distribution of the Estate in Serbia – there have been Letters of Administration obtained in NSW in respect of NSW assets based on what the Defendant later accepted, without admitting personal involvement, was a forged document. The Defendant's cross claim is based on a 2011 Will and alternatively a family provision claim. The Defendant has already received significant benefits from the Estate as a result of Letters of Administration obtained on her behalf by her agents. The Plaintiffs claim that the 2011 Will (like the document on which Letters of Administration were obtained) is also a forgery. Consideration of various matters relevant to dismissal of the cross claim including effective abandonment of it by the Defendant and the weakness of her claim – Held: cross claim should be dismissed. CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — No defence – Consideration of whether, there being no defence to the Plaintiffs' Amended Statement of Claim, there should be judgment for the Plaintiffs – Held: there should be judgment for the Plaintiffs on their Amended Statement of Claim, for various reasons. COSTS – indemnity costs – consideration of whether the Plaintiffs should be awarded indemnity costs by reason of the conduct of the Defendant/ Cross claimant in these proceedings – Held: that indemnity costs should be awarded for various reasons including the fact that the Defendant by her agents obtained Letters of Administration in her favour on the basis of a forged document. Legislation Cited: Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules (2005) Cases Cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Estate of Maria Zbrozek; Katarzyna (aka Kasia) Duszyk v Charles Emmanuel Morgan - Interim Administrator of the Estate of the late Maria Zbrozek [2020] NSWSC 1591 Hartigan v International Krishna Consciousness Inc [1999] NSWSC 57 Hoser v Hartcher [1999] NSWSC 527 MacDonald v Australian Securities and Investments Commission (ASIC) [2007] NSWCA 304; (2007) 73 NSWLR 612 Middleton v O'Neill (1943) 43 SR (NSW) 178 Morris-Harris-Keith v Hughes [2019] NSWSC 665 Quality Bakers Australia Pty Ltd v Yassin Modern Bakery Pty Ltd t/as Yassin Lebanese Bakery [2007] NSWSC 804 Ramage v Waclaw (1988) 12 NSWLR 84 Re Smith; Ex parte Rundle (No 2) (1991) 6 WAR 299 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491 Stollznow v Calvert [1980] 2 NSWLR 749 Witten v Lombard Australia Ltd [1968] 2 NSWR 529 Texts Cited: G.E. Dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) Category: Principal judgment Parties: Radunka Rakic (First Plaintiff/ First Cross-Defendant) Tanja Rakic (Second Plaintiff/ Second Cross-Defendant) Ljiljana Bogic (Defendant/ Cross-Claimant) Representation: Counsel: Mr J Bartos (Plaintiffs/ Cross-Defendants)