Bilyak v Pesor [2012] NSWSC 193

Supreme Court New South Wales

Medium Neutral Citation: Bilyak v Pesor [2012] NSWSC 193 Hearing dates: 7 February 2012 Decision date: 08 March 2012 Before: Hallen AsJ Decision: Not being satisfied that the Defendant made the distributions to each of the beneficiaries in the Ukraine as he asserts, the Court is prepared to certify the principal amount to which each Plaintiff is now entitled. Interest should be paid on the share of the proceeds of sale of the Kanwal property calculated from 17 October 1995 at 8 per cent per annum until 31 August 1998 and, thereafter, until the date of judgment, at the rate of 6 per cent per annum. Interest should be paid on the share of the proceeds of sale of the Flagstaff Hill property calculated from 17 February 1999, and, thereafter, until the date of judgment, at the rate of 6 per cent per annum. The Court will certify that each of the Plaintiffs is entitled to the amount upon which mathematical agreement is reached and interest calculated for the periods and at the rates stated above with judgment against the Defendant accordingly The Defendant is to pay the Plaintiffs' costs of the proceedings. Direct the Plaintiffs' counsel to bring in short minutes of order that give effect to my reasons. Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned. Catchwords: The Plaintiffs seek an order that the Defendant, the appointed executor to whom Probate was granted, provide a proper account in respect of his administration of the estate of the deceased, and that he pay to them all monies found to be due to them upon the taking of such an account, together with interest thereon - The Defendant asserts that the deceased's estate has been fully distributed in accordance with the terms of the deceased's Will to the beneficiaries named in the Will Legislation Cited: Civil Procedure Act 2005 Evidence Act 1995 Family Provision Act 1982 Probate and Administration Act 1898 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Wills, Probate & Administration Act 1898 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Chong v Chanell [2009] NSWSC 765 Glazier v Australian Men's Health (No 2) [2001] NSWSC 6 Hellmann's Will, In Re (1866) L.R. 2 Eq. 363 Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Juul v Northey [2010] NSWCA 211 MM Constructions (Aust) Pty Ltd and Anor v Port Stephens Council (No 6) [2011] NSWSC 1613 McKenzie v McKenzie [1971] P33 Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146 Schnapper, Re [1928] Ch. 420 Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219 Spence v Demasi (1988) 48 SASR 536 Yates v Halliday [2006] NSWSC 1346 Texts Cited: Nevill and Ashe, Equity Proceedings with Precedents (NSW) (Butterworths, Sydney, 1981) Williams Mortimer & Sunnucks Executors Administrators and Probate (1982) Category: Principal judgment Parties: Olena Yuriyivna Bilyak (first Plaintiff) Vasyl Dmytrovych Holovka (second Plaintiff) Olena Dmytrivna Harasym (third Plaintiff) John Zenowij Pesor (Defendant) Representation: Mr N Bilinsky (first, second & third Plaintiffs) Defendant appeared in person Horowitz & Bilinsky Pty Ltd (first, second & third Plaintiffs) Defendant not legally represented File Number(s): 2011/190969