Stojcesvska & Tosevski v Tosevski [2001] NSWSC 274

New South Wales Supreme Court

CITATION : Stojcesvska & Tosevski v Tosevski [2001] NSWSC 274 FILE NUMBER(S) : SC 4321/98; 3144/99 HEARING DATE(S) : 28 February, 1 March 2001 JUDGMENT DATE : 12 April 2001

Magda Stojcevska (Plaintiff, 4321/98) PARTIES : Jovce Tosevski (Plaintiff, 3144/99) Toni Tosevski (Defendant) JUDGMENT OF : Master McLaughlin

M. Crawford-Fish (Plaintiff, 4321/98) COUNSEL : R. D. Wilson (Plaintiff 3144/99) M. Willmott (Defendant) Hunt & Hunt Lawyers (Plaintiff, 4321/98) SOLICITORS : Maguire and McInerney Solicitors (Plaintiff, 3144/99) Willis & Bowring Solicitors (Defendant) CATCHWORDS : Family Provision - Claims by de facto widow and infant son - Proceedings instituted after expiry of prescribed period - Extension of time - Distribution of assets before institution of proceedings - Prescribed transaction - Notional estate - Contributions by de facto spouse during relationship with Deceased - Financial and material circumstances of Plaintiffs - Health problems of adult Plaintiff - Education of infant Plaintiff - Competing claims of beneficiaries LEGISLATION CITED : Family Provision Act 1982 CASES CITED : Warren v McKnight (1996) 40 NSWLR 390 DECISION : See paragraphs 105-106

1 MASTER: These are two sets of proceedings under the Family Provision Act 1982. 2 By summons 4321 of 1998 filed on 19 October 1998 Magda Stojcevska claims an order for provision out of the estate or notional estate or both of the late Cane Tosevski. By summons 3144 of 1999 Jovce Tosevski (an infant, by his tutor Snezana Nicolovska) claims an order for provision for his education, maintenance and advancement in life out of the estate of the late Cane Tosevski. 3 In each matter an order was made by consent on 19 November 1999 that the two sets of proceedings be heard together and that the evidence in the one be received as evidence in the other. 4 The Plaintiff Magda Stojcevska (to whom I shall refer as "Magda") was at the time of his death the de facto spouse of the late Cane Tosevski. Jovce Tosevski (to whom I shall refer as either "Jovce" or "John" (for by that latter name or by the name "Johnny" he appears to be known and referred to in the family)) is the son of the Plaintiff and Cane Tosevski. He was born on 18 January 1993, and is presently aged eight. 5 Cane Tosevski (to whom I shall refer as "the Deceased") died on 24 July 1996, aged forty-three. He left a will dated 12 December 1991, probate whereof was on 3 October 1996 granted to Toni Tosevski, the executor named in such will (who is the Defendant to each of the present proceedings). 6 The Deceased, who had been born in Macedonia and had come to Australia in 1974) had married in Macedonia. Of that marriage, to his wife Mara, were born two sons, Toni (also referred to as Tony), who was born on 6 April 1972 and who is presently aged twenty-nine, and Nick, who was born on 7 July 1979, and who is presently aged twenty-one. The Deceased's wife Mara died on 28 June 1990. 7 The Plaintiff Magda was born in Macedonia on 20 July 1958, and is presently aged forty-two. She came to Australia in June 1977, and later that year married Ljube Ristevski. Of that marriage was born a son, Zoran Ristevski, on 25 March 1979, who is presently aged twenty-two. 8 Magda and her husband separated in October 1990. In July 1991 Magda commenced to live in a de facto relationship with the Deceased, who, by that time, was a widower. They firstly resided in a house property owned by the Deceased at 24 William Street, Tempe, together with the Deceased's two sons Toni and Nick, and Magda's son Zoran. Subsequently, in 1992, they moved to another house property owned by the Deceased at 288 Bay Street, Brighton-le-Sands. 9 On 18 January 1993, John was born to Magda and the Deceased. 10 By his will the Deceased left the entirety of his estate equally between his sons Toni and Nick. (It will be appreciated that the will was made before the birth of John.) 11 The assets in the estate (as revealed in the Inventory of Property) consisted of the house property situate at the known as 288 Bay Street, Brighton-le-Sands, which from 1992 until the death of the Deceased had been the matrimonial home of Magda and the Deceased, together with their respective children; a commercial property situate at and known as 445 King Street, Newtown; and a 1983 Sigma station wagon (to which a value of $4,000 was attributed). 12 At the outset of the hearing it was noted that the agreed present value of the Bay Street property was $405,000 and the agreed present value of the King Street property was $500,000. 13 In addition, the Defendant in his affidavit sworn on 3 December 1999 (filed in accordance with the provisions of Part 77 rule 59 of the Supreme Court Rules) set forth the following property which, in his opinion, might be the subject of a prescribed transaction: