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: (a) Moneys held in the Commonwealth Bank of Australia Account number 2261 5001 642 in the name of Cane Tosevski as trustee for Toni Tosevski. (b) The sum of $80,000 paid to the Defendant on or about 10 January 1996 by Cane Tosevski. (c) Proceeds of sale of a property situate at and known as 15 John Street, Tempe, in the sum of approximately $137,755, paid to the Defendant at the direction of the Deceased on or about 25 June 1996. 14 The foregoing information concerning property which might be the subject of a prescribed transaction was amplified by the Defendant in his affidavit sworn on 22 February 2001, where he set forth the following matters. 15 On 7 March 1995 the Deceased sold the house property situate at and known as 24 William Street, Tempe for $165,000. The net proceeds of sale (in an amount of about $156,505) were deposited in the foregoing bank account with the Commonwealth Bank. On 20 March 1995 the sum of $75,000 was withdrawn from that account and paid to the Commonwealth Bank in discharge of a mortgage held by that bank over the Bay Street property. On about 10 January 1996 the Deceased withdrew the sum of $80,000 (representing most of the entirety of the balance then remaining from the proceeds of sale of the William Street property) and deposited that amount into a savings account number 2126 1002 0978 maintained by Toni with the Commonwealth Bank. 16 On or about 24 June 1996 the Deceased sold a property situate at and known as 15 John Street, Tempe for $142,000. The net proceeds of sale, in an amount of about $137,755, were paid to the Defendant at the direction of the Deceased upon settlement of that sale. That amount was also paid into the aforesaid savings account number 2126 1002 0978 maintained by Toni with the Commonwealth Bank. 17 The sale of the John Street property, and the payment to the Defendant of the net proceeds of that sale (which transactions took place only one month before the death of the Deceased) constituted a prescribed transaction of the nature described in section 23(b)(ii) of the Family Provision Act. 18 In consequence of the foregoing transactions, Toni received from the Deceased a total amount of about $217,755. Of that total amount the sum of about $71,155 has been retained by Toni and is presently invested in a term deposit with the Commonwealth Bank. The balance of about $146,600 has been expended by Toni in the manner set forth in paragraph 12(e) of his affidavit of 22 February 2001. That expenditure includes about $28,500 spent on the purchase of the Taren Point business; payment of Nick's college fees in an amount of about $20,000; expenditure in respect to Toni's engagement, wedding and honeymoon, totalling about $50,000; repairs and renovations to the Bay Street property, in an amount of about $9,000; together with the Deceased's unpaid tax (about $3,500), and the Deceased's funeral expenses (about $7,000). According to Toni, the balance of the moneys have been used by him for day to day living expenses. 19 After the death of the Deceased Magda continued to reside in the Bay Street property until 27 August 1996, when, on account of domestic problems with Toni and Nick (who continued in residence at Bay Street after their father's death and who remain there to the present time), Magda and John removed into a women's refuge. Zoran went to reside with his aunt, Snezana Nicolovska. 20 The Defendant did not dispute the status of the Plaintiff Magda as the de facto spouse of the Deceased at the time of his death. In consequence, therefore, she is an eligible person within paragraph (a) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. The Plaintiff John, as a son of the Deceased, is also an eligible person in relation to the Deceased, being such within paragraph (b) of the definition. Each of the Plaintiffs, therefore, has the standing to bring her or his respective proceedings against the estate of the Deceased. It should be noted, further, that each of the other two sons of the Deceased, Toni and Nick, is also an eligible person within paragraph (b) of the definition, and that Magda's son Zoran, by her husband Ljube Ristevski, is also an eligible person, within paragraph (d) of that definition. However, neither Toni nor Nick nor Zoran has made an application for provision under the Family Provision Act (although a notice of claim was served upon each of Nick and Zoran, as well as upon each Plaintiff). 21 Two significant problems confront each of the Plaintiffs in their present claims. 22 Firstly, each set of proceedings is out of time. The limitation period of eighteen months from the death of the Deceased (prescribed by section 16 of the Family Provision Act) expired on 24 January 1998. The claim by Magda was instituted on 19 October 1998, almost nine months out of time; whilst that of John was instituted on 9 July 1999, eighteen months out of time. 23 Secondly, the assets of the estate have been distributed, after notice in that regard foreshadowing the possibility of such distribution was on 27 March 1997 given by the solicitors for the executor to the solicitors who at that time were acting for both Plaintiffs (Exhibit 1). Accordingly, any provision can now be ordered only against the notional estate of the Deceased, being property which is now held by either or both of Toni and Nick Tosevski. 24 I have already recorded that shortly before his death the Deceased on 24 June 1996 sold real property at 15 John Street, Tempe for $142,000. The net proceeds of that sale (being in amount of $137,750) were deposited into an account with the Commonwealth Bank in the name of Toni Tosevski. That sale was a prescribed transaction (of the nature described in section 23(b)(ii) of the Family Provision Act), and the proceeds thereof will also be available as notional estate to bear any order for provision which might ultimately be made in favour of one or both of the Plaintiffs. 25 Each of the properties at Bay Street and at King Street was transferred to Toni and Nick as joint tenants on 10 July 1997, pursuant to the provisions of the will of the Deceased and after the giving of the notice concerning distribution of the estate to which I have already referred. (I note that by his will the Deceased gave those properties to Toni and Nick as tenants in common; I gather that the transfer to them as joint tenants was made consequent upon a decision by them in that regard). 26 A great deal of evidence (both by way of affidavit and by way of cross-examination of witnesses) was devoted to the question of extension of time. An order for extension of time was sought in the summons filed on behalf of each Plaintiff. However, most of that evidence did not address itself to the specific problem confronting the Plaintiffs. 27 There was filed on behalf of Magda an affidavit by her former solicitor, Miss Catherine Barmes, who had formerly had the carriage of the matter while Miss Barmes was an employee of Varnava & Fabiani, the solicitors who originally acted for Magda. It emerged that Miss Barmes had, well within the period of eighteen months from the death of the Deceased, prepared a summons naming both Magda and John as Plaintiffs, and seeking an order for provision for each of those Plaintiffs, and that Miss Barmes had also prepared an affidavit by Magda, which affidavit was subsequently sworn by her. 28 It would appear that those documents were lodged at the Registry of the Court. However, by that time Miss Barmes had ceased to be employed by Varnava & Fabiani (or, if she still had a professional connection with that firm, it was only in respect to one specific item of litigation, which was totally unrelated to the claims of the present Plaintiffs). 29 It would appear that the Registry raised a requisition in respect to the affidavit of Magda. For reasons which have not emerged from the evidence in the present proceedings, the summons prepared by Miss Barmes was not filed, and no attempt appears to have been made to respond to the requisition concerning the affidavit of Magda, or to prepare a fresh affidavit. There the matter appears to have languished. No evidence was offered concerning the identity of the person who had the professional conduct of the contemplated claims by Magda and John at the time when the summons and the affidavit were lodged with the Court for filing, or concerning any person at the firm of Varnava & Fabiani who subsequently had the conduct of the matter. There was no evidence explaining why nothing had been done by that firm after the lodgment of the summons and the affidavit at the Registry, or why no attempt was made at least to file the summons, if not to comply with the requisition concerning the affidavit. 30 The evidence of Magda in the present proceedings concerning attempts by her to contact Miss Barmes and concerning an alleged conversation by her with Miss Barmes appear to me to be totally irrelevant to the question of extension of time. During the period whilst Magda was allegedly attempting (without success) to contact Miss Barmes, the latter had no professional responsibility for or association with the matter whatsoever. 31 The discretion vested in the Court by section 16(2) to allow an application to be made after the expiry of the prescribed period of eighteen months after the death of the Deceased is expressly subject to the provisions of subsection (3) of that section. That latter subsection provides. The Court shall not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the expiration of the prescribed period unless sufficient cause is shown for the application not having been made within that period. 32 Apart from the necessity for the applicant to show sufficient cause for the application not having been made within the prescribed period (that is, the requirement of establishing what is referred to as the sufficiency of the explanation of delay in making the claim), it has been held in Warren v McKnight (1996) 40 NSWLR 390 at 394 that there are three other such factors which are relevant to the exercise of the Court's discretion to extend time for the making of such an application. According to Hodgson J (as he then was) those further factors are: "secondly, would there be any prejudice to beneficiaries; thirdly, has there been any unconscionable conduct by the Plaintiff; and fourthly, the strength of the Plaintiff's case". 33 At all relevant times it was the understanding of Magda that the proceedings had, in fact, been instituted in accordance with her instructions. Had those instructions been carried out, as both Magda and Miss Barmes believed they had, the proceedings would have been instituted within time (despite the fact that Magda in her oral evidence said that Miss Barmes had not told her of the existence of a limitation period). Whilst there has been offered to the Court no explanation of the circumstances in which, after the Registry issued a requisition in respect to the affidavit which Magda had sworn in support of the summons prepared on behalf of herself and John by Miss Barmes, no further attempt was made to file those documents, nevertheless, the fact that the summons was not filed within time cannot be regarded as the fault of Magda. Even less, can it be regarded as the fault of John (who, it will be appreciated, was named in the summons prepared by Varnava & Fabiani as bringing the proceedings by his tutor Snezana Nikolovska), he being an infant of tender years, aged only four, at the time when that document was lodged for filing. 34 I am satisfied that an adequate explanation has been offered by Magda and John for the fact that their respective proceedings were not instituted within time, that explanation being that the appropriate documents (including an affidavit sworn by Magda) had, upon her instructions been prepared within time and, so far as she was aware (until after the expiry of the prescribed period), had been filed within time. 35 I have already referred to the fact that the two pieces of real estate which constituted the significant assets in the estate of the Deceased were transferred to Toni and Nick on 10 July 1997. It was submitted on behalf of the Defendant that any extension of time would have the effect of causing prejudice to Toni and Nick. That, so it was submitted, is especially so in the case of the Bay Street property, which has remained the residence of those two beneficiaries, and into which Toni, who has subsequently married and now has a child, has brought his wife and child. It was submitted that if there were to be an extension of time, and then an order for provision affecting the continuing occupancy by the beneficiaries in the Bay Street property, that fact would constitute a very significant prejudice to each of the beneficiaries, especially to Toni. 36 There has been no unconscionable conduct by either Magda or John. The only criticism which can be addressed to the Plaintiffs (and I doubt whether such criticism can, indeed, be properly addressed to John, an infant of tender years) is that the proceedings were not instituted until after a notice foreshadowing possible distribution was given by the Defendant to the Plaintiff on 27 March 1997. It will be appreciated, however, that that notice was given well before the expiry of the limitation period prescribed be section 16 (1) of the Act. It does not seem to me that the fact of that notice can of itself be determinative of the application by the Plaintiffs for extension of time. 37 The final matter to be considered in regard to the application for extension of time is the strength of the case of the Plaintiffs. 38 It has already been observed that here any order for provision must be made out of the notional estate of the Deceased. Magda, who was the de facto spouse of the Deceased for a period of five years preceding the death of the Deceased, and who throughout the entirety of that period can be equated to being the wife of the Deceased; and John, the infant son of the Deceased, who was not mentioned in the will of his father, and who received no benefit under that will, each (as will hereafter appear) has a significant claim against the estate of the Deceased. 39 For the foregoing reasons, therefore, I consider that, in the exercise of the discretion committed to it by section 16 (2) of the Act, the Court should in the case of each Plaintiff extend the prescribed period up to and including the date upon which the summons of that Plaintiff was filed. 40 I have already identified to the other problem confronting the Plaintiffs. That problem relates to the fact that, in consequence of the proceedings not having been instituted within time and in consequence of Magda (through her solicitors) totally disregarding the statement made by the solicitors for the Defendant, foreshadowing a proposed distribution of the estate, any orders for provision can be made only in respect to the notional estate of the Deceased. That means that it is necessary that I should firstly proceed to a consideration of the substantive claims of the Plaintiffs. Then, having ascertained the nature of any order for provision an entitlement to which the Plaintiffs or either of them might otherwise have established, I must, in the light of the relevant provisions of the Family Provision Act relating to notional estate and prescribed transactions, decide whether I should interfere with the ownership by the beneficiaries of either or both of the Brighton-le-Sands property and the Newtown property, or the proceeds of sale of the John Street property by designating any of those properties or proceeds of sale as notional estate of the Deceased, so that any such order for provision can be borne by that notional estate. 41 It will be appreciated that before the Court is enabled to make an order designating property as notional estate of the Deceased, the Court must be satisfied of the various matters set forth in subsection (1) of section 28 of the Family Provision Act. 42 In the circumstances of the instant case, I am satisfied that the estate of the Deceased is insufficient to allow the making of provision that in my opinion should be made in favour of each of the Plaintiffs (section 28(1)(a)). 43 Further, in a case such as the present, where the application is made pursuant to an order under section 16 allowing the application to be made after the expiration of the prescribed period, the Court is precluded from making an order designating property as notional estate of the Deceased by reason of a distribution unless it is satisfied of one or other of the matters set forth in paragraph (c) or paragraph (d) of section 28(5). 44 Paragraph (d) is in the following terms, that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity, during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property. 45 In the instant case, it will be appreciated that John was throughout the period up to and including the expiration of the prescribed period (and is, to the present time) subject to the legal incapacity of infancy. I regard that factor as a special circumstance (noting that the Legislature by the specific terms of subsection (5), has recognised such legal incapacity as a special circumstance for the purposes of that subsection). 46 In the case of Magda, I consider the strength of her claim (including her financial and other contributions to the assets of the Deceased), together with the fact that it was through no fault of hers that her application was not made within the prescribed period, as constituting such special circumstances of the nature referred to in paragraph (d) of subsection (5). 47 In consequence, therefore, the Court is not precluded by section 28(5) from proceeding to an exercise of its discretion to make an order for provision in favour of one or both of the Plaintiffs. 48 I have already referred to the Brighton-le-Sands property as having been the matrimonial home of Magda and the Deceased during the period of their relationship. The two children born to the Deceased's marriage, together with Magda's child of her own marriage, and John, being the child of Magda and the Deceased, were also resident in the Brighton-le-Sands property. After the death of the Deceased the relationship between Magda and Toni was such that Magda, accompanied by her two children, departed the Brighton-le-Sands residence and she removed herself and her younger child into a women's refuge. 49 It is unnecessary for me, for the purposes of the present proceedings, to make any findings concerning the allegations by Magda that that removal was precipitated by threats attributed to Toni that he would "slaughter" Magda and her children if she, variously, did not remove herself from the Brighton-le-Sands house, or continued to maintain her Court case. (I am somewhat uncertain whether the Court case referred to in these alleged threats was the present, or earlier contemplated, proceedings under the Family Provision Act, or was the then current application by Magda for an apprehended violence order against Toni.) Toni in his evidence expressly denied making any threats (in particular the specific threat that he would "slaughter" Magda and her children) to or against Magda. Whether or not any threats of the foregoing nature, or indeed any threats of any nature, were made, it is quite apparent that the domestic situation in the Brighton-le-Sands residence after the death of the Deceased was one of considerable disharmony between Magda and her children on the one hand and Toni and Nick on the other hand. 50 Since the departure of Magda and her children the Brighton-le-Sands property has been occupied by Toni and Nick and, as I have already recorded, more recently, by the wife whom Toni has subsequently married and by their very recently born child (who was born only in February 2001). 51 Toni has used his interest in the Brighton-le-Sands property as security for a loan which he obtained for the purchase of a panel beating business in which he is a partner. (The subject of that purchase was real property at 26 Box Road, Taren Point, together with the business conducted at that address.) Further, Toni has effected (although probably with the proceeds of sale of the John Street property) considerable renovations and improvements to the Brighton-le-Sands residence. 52 It would be inappropriate in the circumstances of this case for any order for provision to be made in favour of either Magda or John which would have the effect of interfering with the ownership of or the occupancy by the Toni and Nick in the Brighton-le-Sands property. Not only do they both reside in that property, but the property has been used as security for the purposes of the business which constitutes Nick's livelihood. I have already recorded that that property was transferred to the beneficiaries (as was the Newtown property) after notice in that regard had been foreshadowed by the Defendant to Magda. 53 Any order for provision which might ultimately be made in favour of either or both of the Plaintiffs will be in respect to the notional estate consisting of the King Street property and the balance of the proceeds of sale of the property at John Street, Tempe. 54 In approaching the claims of the Plaintiffs, and in calculating the value of the notional estate available to meet any orders for provision, it must also be appreciated that the costs of the Defendant of the present proceedings must be provided for and, in the event that one or both of the Plaintiffs be successful, the costs of such successful Plaintiff or Plaintiffs also. In accordance with the prescribed procedure in that regard, the parties have provided the Court with estimates of those costs. The costs of Magda total $55,130, the costs of John total $37,000 and the costs of the Defendant total $37,174. That is, the totality of the costs of all parties is in an amount slightly less than $130,000. 55 It follows, therefore, that if, as I have already stated will be the case, there be no interference with the Brighton-le-Sands property, and if the Newtown property and the proceeds of sale of the John Street property be designated as notional estate for the purposes of the present proceedings, the foregoing costs, in the order of $130,000, must be met from that notional estate. Upon the assumption that the Newtown property would fetch $500,000, then, after payment of costs and expenses associated with that sale and after deduction of the foregoing amount of $130,000, there would probably then remain an amount of about $350,000, to which should be added the proceeds of the sale of John Street presently retained by Toni. 56 Accordingly, it is appropriate therefore that I should now proceed to a consideration of the substantive claims of the Plaintiffs in the light of the financial and material circumstances of each Plaintiff, and of the competing claims upon the testamentary bounty of the Deceased, in respect to the notional estate of the Deceased. 57 I have already recorded that from the time when the Plaintiff and the Deceased commenced co-habitation in July 1991 they lived together with the Deceased's two children, Toni and Nick, and the Plaintiff's son Zoran, and, after his birth, the child of the Plaintiff and the Deceased, John. Until a few months before John's birth the Plaintiff was employed as a factory worker, earning $296 a week. Thereafter she devoted herself to being a full-time wife and mother. She attended to all the household responsibilities, including shopping, cooking, cleaning, washing, ironing, general housekeeping, and, after the birth of John, being mother, not only to him, but also to the other three children who were members of the family unit. 58 Magda in her affidavit of February 1999 (the precise date of the swearing thereof not appearing upon the affidavit, but the affidavit having been filed on 8 February 1999) set forth in detail the relevant circumstances concerning her marriage and her employment history after her arrival in Australia. From mid-1978 until October 1992, three months before the birth of John, Magda was in regular employment (interrupted for a period of about nine months at the time of the birth of Zoran). For most of that period she was employed at the factory of Sandler Shoes at St Peters. 59 Throughout her marriage to Mr Ristevski Magda gave most of her earnings to her husband, until she separated from him on 23 October 1990. 60 At the time when she commenced co-habitation with the Deceased in July 1991 Magda had savings of about $3,000. She and the Deceased agreed that the Deceased would pay certain expenses, and that Magda's wages (then in an amount of about $296 a week) would be used for shopping and for outings on the weekend. Magda and the Deceased maintained separate bank accounts. 61 During the period of her relationship with the Deceased, Magda with her own money purchased a freezer for the house. Various other household items were purchased with moneys provided jointly by Magda and the Deceased, including the installation of a new kitchen, and the painting thereof, and a new carpet in the Brighton-le-Sands property. 62 Shortly after the household moved into the Brighton-le-Sands property in 1992 Toni asked the Deceased to lend him $2,500 to purchase a motor car. As the Deceased was financially fully committed at that time Magda said that she would lend Toni the money, provided that she was repaid by either Toni or the Deceased. That amount of $2,500 was thereupon lent by Magda to Toni. A few months later Toni sold the motor car and borrowed (apparently conjointly with the Deceased) an amount of about $30,000 to buy a Porsche motor vehicle. Of the loan of $2,500 which Magda had made, she was repaid only $500, that repayment being made by the Deceased, who at the time told her that because he had taken out the loan for the purchase of the Porsche he could not afford to repay Magda the balance which she was owed. Subsequently the Deceased told Magda that the loan for the Porsche was finally repaid in 1995. 63 At the time of the commencement of co-habitation Magda owned a Sigma motor vehicle. The Deceased sold that vehicle for $1,150 and retained the proceeds of sale. Magda requested those moneys, and the Deceased, although promising to pay them to her, together with the outstanding balance of $2,000 on the loan, did not ever make payment of either amount. 64 After the birth of John the Plaintiff stayed at home and has not subsequently been in employment. 65 According to Magda, the Deceased did not provide her with any significant housekeeping money. It would appear that she paid for housekeeping out of her own wages, and also out of the Family Allowance payment which she was receiving in respect of Zoran. After the birth of John that Family Allowance increased to $242.60 a fortnight. Magda said that, at the insistence of the Deceased, she gave him the Family Allowance payments which she received. 66 Magda gave evidence of a fraudulent arrangement by which, at the instigation of the Deceased, she applied for and received a sole parent pension, despite the fact that she was at the time living in a de facto relationship with the Deceased. That sole parent pension (in an amount of $326 a fortnight) was in addition to the Family Allowance which she continued to receive for her two children. The Deceased required Magda to hand over to her the sole parent pension every fortnight, which she did. It was the estimation of Magda that until the death of the Deceased she had improperly received in Social Security payments amounts totalling $14,508, and had also received additional Family Allowance payments to which she was not entitled. It is somewhat unclear from the evidence what arrangements have been made by Magda to repay these amounts which she improperly received. 67 When Toni turned twenty-one in April 1993 the Deceased and Magda hosted a birthday party for him. The cost of that party, about $1,500, was shared by both the Deceased and Magda. 68 Magda also gave evidence concerning the Family Court proceedings brought by her against her former husband Ljube Ristevski, and concerning what she said was false affidavit evidence sworn by her in those proceedings, relating to her financial and material circumstances. 69 It is abundantly obvious that Magda, throughout the five years of her de facto relationship with the Deceased made significant financial and material contributions to the Bay Street property, to the household outgoings, and to the finances of the Deceased himself. 70 At the present time Magda and John are living in rented Housing Commission accommodation at Barrack Heights, for which she pays $98.60 a fortnight. Magda's income consists of a pension from CentreLink in an amount of $394.10 a fortnight, by way of what is described as "Parenting Payment Single", together with a pharmaceutical allowance of $5.60 a fortnight. After the deduction of her rent by way of direct payment from CentreLink, Magda receives a net amount each fortnight of $301.10 from CentreLink. In addition, she receives a Family Payment in respect of John. That Family Payment is in an amount of $301 a fortnight. That is, Magda's total net income, after deduction of rent, is $602 a fortnight, upon which she must support herself and John. She calculates that her weekly expenses are in excess of $333. 71 The only asset (apart from the contents of her residence, and personal effects) owned by Magda was the Sigma motor vehicle, which she had retained since the death of the Deceased, and which she disposed of in February 2001 (at which time it is estimated that its value was less than $100). 72 John is presently a pupil at Shellharbour Public School, where he is in third grade. I have already referred to the effect upon his scholastic progress of his inability to speak English. For that or for other reasons, it would appear that John gets very upset at school and becomes aggressive. Evidence was placed before the Court by way of a letter dated 21 February 2001 from the Principal of the Shellharbour Public School, concerning the additional learning support which John is receiving through the school, and recommending that he receive additional English lessons outside of school hours, since, in the words of the Principal, such lessons would "most certainly improve his communication skills and opportunity to make improved academic progress". 73 The Deceased died of AIDS. He never informed the Plaintiff of his condition. That omission on the part of the Deceased was irresponsible, unfeeling, and possibly criminal. (I note, however, in this regard that it was only on 25 January 1995 that the Deceased was actually told of his positive HIV test result and the diagnosis of AIDS, and that the Plaintiff was on the same date informed of that test result by a doctor, and of the possibility that she and John could also be HIV positive.) 74 The Deceased was unwell for a period of three years preceding his death, his health having begun to deteriorate in mid-1993. Throughout that period the Plaintiff nursed and cared for him in every way. She attended to him at home, cooking for him, feeding him, bathing him, giving him his medication, as well as driving him to hospital for his numerous medical appointments. The Deceased refused to be cared for by any person other than the Plaintiff. 75 During her relationship with the Deceased the Plaintiff herself contracted AIDS. The affidavit evidence was most pessimistic concerning Magda's prognosis. Evidence was given by Dr Pamela Konecny, who is a highly qualified medical practitioner, being Staff Specialist Infectious Diseases at the St George Hospital and who has been supervising the treatment of the Plaintiff at that hospital (where Magda attends four to six times a year). The oral evidence of Dr Konecny, however, was much more optimistic than her written reports and other medical evidence by way of affidavits and reports. Magda currently receives treatment for her condition and takes medication. 76 I consider that the Court now can confidently proceed upon the basis that Magda will live for at least the next ten years. Dr Konecny said that although the long term prognosis was guarded, Magda at the present time had a very good chance that she will live for another ten years. The doctor placed that chance at greater than 75 percent. She said that it was impossible at the present time to say that Magda will live for another twenty years. She said that there is a high probability that Magda will live for a period longer than ten years, and that the chances are small that she will live for only shortly beyond ten years. 77 Further, Dr Konecny said that medically there was no reason why Magda should not return to work, and that her condition should not significantly affect her ability to look after her son, or to perform errands for herself. 78 It follows, therefore, that it is unnecessary for me now to give consideration to the likelihood that Magda might die before John achieves his majority. (The likelihood, indeed the probability, of Magda predeceasing John was the subject of a considerable quantity of evidentiary material placed on affidavit before the most recent evidence of Dr Konecny became available.) 79 It is not possible to consider the substantive needs of Magda and John separately. It is obvious that John must live with his mother, at least until he finishes school, and that the needs of the two Plaintiffs are, at least to an extent, identical. 80 Magda and John are presently residing in rented Housing Commission accommodation at Shellharbour. It is essential that they obtain secure accommodation, preferably consisting of a house with a yard in which John can play. 81 Magda expressed a desire, firstly, that she should be awarded the Brighton-le-Sands residence. For the reasons which I have already indicated, I do not consider that, in the circumstances which now obtain, she has established an entitlement to receive that residence. In the alternative, she has expressed a desire to return to the St George area, in which she resided for a period of about twenty years, and with which she is very familiar. She would prefer to reside in the suburb of Brighton-le-Sands, near to the Bay Street residence. (However, I query the wisdom of Magda living in geographical proximity to Toni and Nick, especially in the light of the various apprehended violence orders which Magda has sought against Toni). 82 However, in this case, as in many cases under the Family Provision Act, the applicant for provision has not seen fit to place before the Court evidence concerning the nature of the residence which she is desirous of acquiring and the cost of such a residence. Magda did however annexe to her affidavit of 13 June 2000 (as annexure B) a copy of a summary of sales by Richardson & Wrench for the period 1 January 1999 to 7 March 2000. The sale prices of those properties, all located at Brighton-le-Sands, ranged from $350,000 to $1.16 million. 83 It seems to me, however, that, to the extent that the size of the notional estate would accommodate such an order, Magda should receive a lump sum benefit which should, firstly, be sufficient to enable her to purchase a house property. That house property would be for the benefit of both herself and, at least until he leaves school or reaches adulthood, for John, by providing a home for the two of them. 84 The lump sum benefit to which Magda is entitled should also be sufficient to enable her to purchase basic household necessities and furnishings, as well as additional clothing and personal requirements for herself and for John, to provide some modest entertainment or pleasures for the two of them, to enhance the very frugal lifestyle which they are presently constrained to maintain, and to provide a fund to meet unexpected contingencies. 85 Magda expressed a desire for John to attend a school where he would receive some benefit of a remedial nature with his learning, especially since his inability to communicate adequately in English seems to be having have a detrimental effect upon his academic achievements at school. This inability of John to communicate in English appears to be largely due to the fact that at home he speaks only Macedonian. 86 The only evidence concerning proposals for John's future schooling which was placed before the Court was a prospectus from the Illawarra Grammar School at Figtree, in the Illawarra area. However, Magda had made no personal inquiries of that school. She had not visited its premises. She had not spoken with its headmaster or any other members of its staff. Indeed, it is doubtful whether she had adequately understood the prospectus, that document being written in English, and Magda having very limited ability in the English language. Although the school appears to be of the Anglican persuasion, Magda, who is of the Orthodox faith, thought that the school was a Catholic establishment. 87 In any event, Magda expressed a desire to return to the St. George district in Sydney. It would be totally inappropriate if Magda were to receive a lump sum sufficient to enable her to acquire a house property in the St. George district and for John then to attend a school located many miles distant, in the Illawarra area. 88 The evidence is not sufficient to enable the Court to make any form of provision for either Magda or John which would include payment for John's education at the Illawarra Grammar School, or, indeed, at any private school. 89 It is, however, appropriate, to the extent that the available notional estate would enable this to be done, for John to receive a legacy (to be held in trust for his benefit, with a liberal power of advancement being given to the trustee), which would go some way towards assisting in his education (perhaps by providing him with remedial teaching in the English language), and towards giving him a start in life when he leaves school and embarks upon a career. 90 It will be appreciated that the Deceased made his will at a time when he had only two children, and that by that will he left the entirety of his estate equally between those two children. Had the assets which are available to meet any order for provision been sufficient in this regard, the appropriate benefit to be given to John would be a benefit no less than that to be ultimately received by each of his two half-brothers. Unfortunately, in consequence of the proceedings not having been brought within time, and in consequence of the distribution of the estate before the institution of the proceedings and after the giving to Magda of notice of intended distribution, that cannot now be done. 91 In approaching the claims of Magda and John, it should be appreciated that the Court must consider the competing claims of Toni and Nick. They are the chosen objects of the testamentary beneficence of the Deceased. It is not necessary that they should prove anything. However, their financial and material circumstances are relevant, to the extent that those circumstances may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which either or both of the Plaintiffs may otherwise establish. 92 Further, it will be appreciated that, since it is only the notional estate of the Deceased which will be available to meet any order for provision in favour of one or both of the Plaintiffs, the circumstances of Toni and Nick are also relevant in respect to the operation of sections 27 and 28 of the Family Provision Act. In particular, the circumstances of the named beneficiaries are relevant to the requirement imposed upon the Court by subsection (1) of section 27, that the Court shall not make an order designating property as notional estate of the Deceased unless it has considered various matters, including, (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, and (c) any other matter which it considers relevant in the circumstances 93 In the instant case, it will be appreciated that both beneficiaries (in particular, Toni) have ordered their affairs since the death of the Deceased upon the basis and assumption that they would share the entirety of their father's estate. Especially after the giving to Magda of the notice of intended distribution of the estate, the foregoing basis and assumption constituted a reasonable expectation on the part of each of Toni and Nick in respect to at least the Brighton-le-Sands property. 94 I have already referred to the panel-beating business which Toni (in partnership, and through the vehicle of a company, Dalfast Pty Limited) acquired in October 1999. 95 Toni's assets consist of his half interest in the Bay Street property and his half interest in the Newtown property, as well as his half interest in Dalfast Pty Limited (to which half interest he ascribes a value of $285,000, that being one half of the value of the freehold premises at Taren Point). In addition, he holds the term deposit of $71,155 to which I have already referred (that term deposit, which is held jointly in the names of Toni and his wife) is held, according to Toni, on trust for Nick. Other assets of Toni consist of a savings account with the Commonwealth Bank, having a credit of about $20,000) a Commodore motor car ($6,000), a jet ski ($8,000), and a superannuation entitlement (having an approximate value of $7,000), together with furniture and furnishings owned jointly with his wife ($25,000) and his entitlement in his loan account with Dalfast Pty Limited ($15,000). Toni's liabilities consist of the mortgage to the ANZ bank secured over the Bay Street property ($117,000) and a one half share in the mortgage over the Taren Point property (about $144,500). 96 I was not very favourably impressed by some of the evidence which Toni gave under cross-examination concerning his present financial and material circumstances. For example, it is difficult to accept, as he asserted, that he does not draw any money from the panel beating business. Further, despite a personal undertaking given on his behalf by his then solicitors to the solicitors then acting for the Plaintiffs in November 1996 that the estate would remain intact until the resolution of the claim by the Plaintiffs (Exhibit A), nevertheless Toni in 1999 encumbered the Bay Street property by the mortgage thereover to which I have already referred. 97 In addition to the assets referred to in his affidavit of 22 February 2001, it would appear that Tony has the possession and use of a Landcruiser worth $38,000. At one stage under cross-examination he said that he had never owned that vehicle but that his wife owns it. At a later stage in the cross-examination he said that the Landcruiser is owned by his wife's father. Further, although Toni in his affidavit attributes to the jet ski a present value of about $8,000, it would appear that it was purchased for $16,000 in 1991. 98 Nick is presently studying graphic design at the Sydney Graphic College. He commenced that three year course in February 2000, and on satisfactory completion of the course will be awarded the degree of Bachelor of Graphic Design. Nick is a full time student, and pays tuition fees of $7,500 a year. It would appear, from Toni's evidence, that those fees have been largely met by Toni, out of the proceeds of the various property transactions of the Deceased which I have already recorded. Nick does not receive any governmental benefit in respect of his studies. His evidence was not particularly helpful in explaining why he did not receive any such benefit as Austudy. He said that he had made no inquiries as to his entitlement to any governmental benefit whilst he is a student, although he had earlier in his evidence said that he was not entitled to such benefits because of his assets being too great. 99 It is the aspiration of Nick to own and conduct his own business as a graphic designer, although he recognises that after graduation he will need to obtain further experience before he can do so. He is desirous of using the moneys received by him from the estate of his father in order ultimately to set up such a business. 100 Apart from his half interest in each of the Brighton-le-Sands house and the Newtown property, Nick's only other assets are his furniture and personal belongings (to which he attributes a value of about $5,000). He has no liabilities. Nick's only income is the amount of $250 a week which he receives from Toni, representing one half of the net income from the Newtown property. 101 The net weekly income from the Newtown commercial premises is $500. That net income is paid into a bank account in the name of Toni alone. However, he gives a weekly amount of one half thereof, $250, to Nick, and also he gives to Nick additional amounts when needed. If, as would appear to be likely, the Newtown property be designated as notional estate and if it be largely or completely exhausted in meeting orders for provision for Magda and John (or either of them), then, in consequence, Nick will be deprived of his income of $250 a week. 102 In my conclusion, Magda has established an entitlement to receive a legacy in the sum of $300,000. I would expect that a legacy in that amount should enable her to purchase a relatively modest dwelling house, having the convenience of a yard in which John can play and desport himself. Further, John is entitled to receive, for the purpose of his education, maintenance and advancement in life, a legacy in the sum of $100,000. The payment of those legacies, as well as the costs in the total amount to which I have referred, can be met from the proceeds of sale of the Newtown property and from the term deposit held by Toni (representing what remains of the proceeds of sale of the John Street property, that sale being a prescribed transaction by the Deceased). In consequence, it is appropriate that, for the purpose of paying such legacies, the Newtown property and that term deposit should be designated notional estate of the Deceased. 103 In respect to the legacy in favour of John, I consider that it is undesirable that that legacy should be held on trust for him by the Defendant. It will be appreciated that, as provided by section 14(1) of the Family Provision Act, the orders which I propose to make in favour of each Plaintiff will take effect as if the legacies contained therein had been made in a codicil to the will of the Deceased. In consequence, any legacy to an infant beneficiary would normally be held by the executor on trust for that beneficiary until the beneficiary achieves his majority. Nevertheless, in the circumstances of this case I consider that it would be undesirable for there to remain any continuing relationship between either Plaintiff and the Defendant. Thus it would in my view be inappropriate for the order of the Court to have the effect of requiring the Defendant to hold a fund representing the legacy in favour of John until John reaches the age of eighteen years, some ten years hence. John's tutor, his aunt, Snezana Nicolovska (who is Magda's sister), would not be an appropriate trustee. She has no experience in dealing with large sums of money, and does not know anyone who could advise her in that regard. 104 Therefore, subject to the consent of the Public Trustee in that regard being obtained, I propose to make an order that the legacy for John be held by the Public Trustee until John reaches the age of eighteen years and that the Public Trustee shall have a power of advancement, both as to the corpus of such fund and as to the income thereon. In the event that the Public Trustee does not accept that office, I will reserve liberty to apply, for the purpose of appointing some other appropriate trustee. 105 Accordingly, I make the following orders: 106 4321 of 1998 Magda Stojcevska v Toni Tosevski (1). I order that the time for the institution of these proceedings be extended up to and including 19 October 1998. (2). I order that the property situate at and known as 445 King Street, Newtown and the term deposit number (062333) 5002635 held with the Commonwealth Bank of Australia be designated notional estate of the late Cane Tosevski ("the Deceased"). (3). I order that the Plaintiff receive out of the notional estate of the Deceased a legacy in the sum of $300,000, such legacy not to bear interest if paid on or before 12 July 2001, and if not so paid to bear interest at Supreme Court rates. (4). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the aforesaid notional estate of the Deceased. 107 3144 of 1999 Jovce Tosevski v Toni Tosevski (1). I order that the time for the institution of these proceedings be extended up to and including 9 July 1999. (2). I order that the property situate at and known as 445 King Street, Newtown and the term deposit number (062333) 50026355 held with the Commonwealth Bank of Australia be designated notional estate of the late Cane Tosevski ("the Deceased"). (3). I order that the Plaintiff receive out of the notional estate of the Deceased a legacy in the sum of $100,000, such legacy not to bear interest if paid on or before 12 July 2001, and if not so paid to bear interest at Supreme Court rates. (4). I order that the aforesaid legacy be paid to the Public Trustee and be held by him on trust for the Plaintiff until the Plaintiff attains the age of eighteen years, and that the Public Trustee as trustee of such legacy have a power of advancement in respect thereof both as to the capital of the aforesaid legacy and as to the income earned thereon. (5). I reserve to the Plaintiff liberty to apply in respect to the identity of the trustee by whom the aforesaid legacy should be held on trust for the Plaintiff, in the event that the Public Trustee declines to accept appointment as trustee of the aforesaid legacy. (6). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the aforesaid notional estate of the Deceased. 108 In each case, the exhibits may be returned. ********** Last Modified: 05/28/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.