Stojanovski v Stojovski [2016] NSWSC 976

Supreme Court New South Wales

Medium Neutral Citation: Stojanovski v Stojovski [2016] NSWSC 976 Hearing dates: 20 and 21 June 2016 Date of orders: 14 July 2016 Decision date: 14 July 2016 Jurisdiction: Equity Before: Hallen J Decision: Order that the Defendant be appointed to conduct the proceedings and represent the deceased's estate and notional estate for the purposes of these proceedings.

Order that the Plaintiff's Summons be dismissed.

Order that each party is to bear her, and his, own costs, respectively, of the proceedings. Catchwords: SUCCESSION – FAMILY PROVISION – Claim for family provision order by daughter of the deceased – Proceedings commenced outside time prescribed by the Act - The Defendant, a son of the deceased – Deceased died intestate - Administration not granted – No actual estate at the date of the hearing – No provision for the Plaintiff on intestacy - Only property that is sought to be designated as notional estate, held by Defendant as the sole registered proprietor – Defendant the proper person to represent the estate and notional estate for the purpose of the proceedings - Whether transaction that took effect within 3 years before the date of the death of the deceased was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased for the maintenance, education or advancement in life of the Plaintiff – Whether order designating property as notional estate should be made - Whether other special circumstances - Designating order not able to be made with the result that there is no actual or notional estate out of which order for provision may be made. Legislation Cited: Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Legal Profession Act 2004 (NSW) Real Property Act 1900 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Carey v Robson; Nicolls v Robson (No 2) [2009] NSWSC 1199 Carr v Douglass [2016] NSWSC 854 Charnock v Handley [2011] NSWSC 1408 Commonwealth of Australia v Gretton [2008] NSWCA 117 Friend v Brien (No 2) [2014] NSWSC 614 Galt v Compagnon (NSWSC, 24 February, 1998, unrep) Gillett v Nelson (No 2) [2014] NSWSC 580 Harkness v Harkness (No 2) [2012] NSWSC 35 Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 Hildebrandt v Soncini [2007] NSWSC 1227 Hills v Chalk [2008] QCA 159; [2009] 1 Qd R 409 Hinderry v Hinderry [2016] NSWSC 780 Kastrounis v Foundouradakis [2012] NSWSC 264 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Manning v Matsen [2015] NSWSC 1801 Moore v Randall [2012] NSWSC 184 Phillips v James [2014] NSWCA 4 Re Salmon, Deceased [1981] Ch 167 Stone v Stone [2016] NSWSC 605 Sung v Malaxos (No 2) [2015] NSWSC 290 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Wheat v Wisbey [2013] NSWSC 537 Texts Cited: G E Dal Pont Law of Costs, (3rd ed 2013, LexisNexis) New South Wales Law Reform Commission, Uniform Succession Laws: Family Provision, Report 110, (2005) Rosalind Croucher, "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] 196 ALR 65 – Orthodoxy or Aberration?" (2005) 27(2) Sydney Law Review 263 Category: Principal judgment Parties: Luba Stojanovski (Plaintiff) Ivan Stojovski (Defendant) Representation: Counsel: Mr K Morrissey (Plaintiff) Mr JE Armfield (Defendant)