Nikolic v Nikolic [2001] NSWSC 1121

New South Wales Supreme Court

CITATION : Nikolic v Nikolic [2001] NSWSC 1121 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1499/00 HEARING DATE(S) : 18-21 September 2001, 24.09.01 JUDGMENT DATE : 14 December 2001

PARTIES : Ratomir Nikolic v Zoran Nikolic, Dragica Nikolic and Petar Dobrich JUDGMENT OF : Master Macready at 1

Mr. G. McGrath for plaintiff COUNSEL : Mr W.G. Muddle for 1st and 3rd defendants Mr B. Shields for 2nd Defendant Stojanovic Solicitors for plaintiff SOLICITORS : Deacons for 1st and 3rd defendants Ebsworth & Ebsworth for the 2nd defendant CATCHWORDS : Equity. Fraudulent misrepresentation. Claim by the plaintiff who could not read or speak English that his son and solicitor had fraudulently misrepresented the terms of two transfers by which the plaintiff's property was transferred to the son. - Held no misrepresentations made and that the transfers were part of a deliberate scheme to defeat claims which were being made upon the plaintiff for provision by the plaintiff's new wife. - Proceedings dismissed. DECISION : Paragraph 104

1 MASTER: These are proceedings by the plaintiff against his son, the first defendant, his son's wife, the third defendant, and the plaintiff's solicitor who is the second defendant in which the plaintiff seeks to set aside two transfers by which he effectively gave away his house at 113 Brisbane Road, St Johns Park, New South Wales to his son. The property has subsequently been transferred by the son into the joint names of himself and his wife who is the third defendant. 2 The plaintiff is 88 years of age and was born in Yugoslavia on 13 February 1913. He came to Australia in 1987 when he was then 74 years old and he does not speak or read English. The first defendant came to Australia in 1984 and he is now fluent in English as well as his native Serbian language. The second defendant has been solicitor of this court since 1981 and he is fluent in the English and the Serbian language. The first document which the plaintiff seeks to set aside was made on 29 December 1997 and is a transfer to the first defendant of an interest in remainder in the property at St Johns Park. According to the plaintiff that document was presented to him by the first and second defendants for signature and explained to him as being a will which had the effect of giving half an interest in the plaintiff's home to the first defendant. The second transfer was signed in August 1998 whereby the plaintiff transferred his then life interest to the first defendant. It was alleged by the plaintiff that the first and second defendants represented to him there were problems with the first document he had signed and that he had to sign a further document which would put the plaintiff in a stronger position. The stronger position to which the plaintiff refers in this part of the pleadings was in relation to his dealings with his then third wife who he had recently married. She was then pressuring him to sign a will in her favour. The plaintiff puts his claims in various ways but primarily his claim is that the representations were made fraudulently by each of the first and second defendants. Subsidiary claims are made against the second defendant in negligence, breach of fiduciary duty and breach of contract of retainer. There is also mention against the first defendant of undue influence, duress and the contract being unjust in the circumstances under the Contracts Review Act. 3 In order to understand the matter it is necessary that the history of family be dealt with in a little detail before returning to the way the claims were put.