Stojanovski v Stojanovski [2019] NSWSC 1713

Supreme Court New South Wales

Medium Neutral Citation: Stojanovski v Stojanovski [2019] NSWSC 1713 Hearing dates: 28 November-2 December 2016, 17 February 2017, 31 August 2017, 1 May and 30 May-6 June 2019 Decision date: 04 December 2019 Jurisdiction: Equity Before: Robb J Decision: Direct the parties to confer, and to agree short minutes if possible, or if not, propose appropriate short minutes of order for the consideration of the Court. See pars 613 to 618 Catchwords: CONTRACTS — Formation — Agreement — Intersection of contract law with succession law — Enforceability of testamentary agreement — Agreement binding and plaintiff entitled to order that it be specifically performed — Standing of plaintiff under UCPR r 7.10(2)(b) to represent the estate for the purposes of this claim accepted — Standing of fourth defendant to resist this claim, accepted upon considerations of procedural fairness and natural justice — Enforceability of testamentary agreement upheld

SUCCESSION — Family provision — Claim by adult child — Proceedings not commenced within time — Whether sufficient cause shown to extend time — Extension of time permitted

SUCCESSION — Family provision — Claim by adult child — Claim made under Family Provision Act 1982 (NSW) — Whether adequate and proper provision made for the plaintiff — Where the course of the litigation itself over more than a decade, including and especially the amount of outstanding legal fees, has become a paramount factor in determining the material circumstances of the beneficiaries — Where plaintiff alleges that substantially all legal costs incurred are the fault of the first and fourth defendants — Where evidence shows failure of deed of release was substantially of plaintiff's own making — Where plaintiff's case has changed substantially over time, including by totally abandoning many claims — Where beneficiaries are in materially similar financial and personal circumstances — Consideration of whether claimant's costs are permitted to be paid out of the deceased estate — No family provision ordered Legislation Cited: Bankruptcy Act 1966 (Cth) Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Family Law Act 1975 (Cth) Family Provision Act 1982 (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015 Legal Profession Uniform Law (NSW) Limitation Act 1969 (NSW) Real Property Act 1900 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Anderson v Hill [2017] NSWSC 1149 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52 Boyd v Thorn (as Executrix of Estate of McAuley) [2016] NSWSC 588; (2016) 18 BPR 35,941 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56 Henry v Hancock [2016] NSWSC 71 In the marriage of Reed (1989) 98 FLR 268; 13 Fam LR 566 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Squire v Squire [2019] NSWCA 90 Steinmetz v Shannon [2019] NSWCA 114 Stojanovski v Stojanovski [2012] NSWSC 1338 Stojanovski v Stojanovski (No 2) [2012] NSWSC 1547 Stojanovski v Stojanovski [2013] NSWSC 1491 Stojanovski v Stojanovski [2018] NSWSC 1967 Stojanovski v Stojanovski [2018] FCA 580 Stojanovski v Stojovski [2016] NSWSC 976 Verzar v Verzar [2014] NSWCA 45; (2014) 12 ASTLR 523 Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Texts Cited: GE Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths Australia) Category: Principal judgment Parties: Steven Stojanovski (plaintiff) Robert Stojanovski (first defendant) Jovanka Stojanovski (second defendant) Jordan Stojanovski (third defendant) Angelina Stojanovski (fourth defendant/cross-defendant) Fabian Kane Micheletto (fifth defendant/first cross-claimant) Michael Carrafa (sixth defendant/second cross-claimant) Representation: Counsel: C Bevan; J Zmood (28 November to 2 December 2016) (plaintiff) A Crossland and M Cowden (28 November to 2 December 2016); A Crossland (17 February 2017) (first defendant) A Crossland and M Cowden (28 November to 2 December 2016); A Crossland (17 February 2017); M Cowden (31 August 2017); A Ahmad (1 May 2019); T Jonker (30 May 2019) (fourth defendant) S Golledge SC (fifth and sixth defendants)