Crnjanin v Ioos; Ioos v Crnjanin

Supreme Court of NSW|2010-07-05|Before: Lindgren AJ, Gren AJ

CITATION : Crnjanin v Ioos; Ioos v Crnjanin [2010] NSWSC 750

JURISDICTION : Equity Division Probate List

DECISION : Direction to plaintiff trustee (Crnjanin) that he would be justified in paying half share in estate of Olga Lisevich deceased to defendant Marianna Ioos.

CASES CITED : Macedonia Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonia Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66

PARTIES : Jovan Milan Crnjanin (Plaintiff in 10/187336 and Defendant in 10/107053) Marianna Ioos (Plaintiff in 10/107053 and Defendant in 10/187336)

FILE NUMBER(S) : SC 187336 of 2010; 107053 of 2010

COUNSEL : R Lilley SC (for Crnjanin) R Colquoun (for Ioos)

SOLICITORS : Shanahans Solicitors (for Crnjanin) John Drakos Solicitors (for Ioos)

10 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1 HIS HONOUR: The plaintiff is the administrator with the will annexed of the estate of Olga Lisevich who died on 22 February 2006. Without any discourtesy intended and for convenience only I will refer to her as "Olga" and to other persons concerned by their first names. Administration was granted to the plaintiff by the Supreme Court of New South Wales on 29 June 2009. 2 By her last will, made on 5 September 1990, Olga appointed her husband Dimitry Lisevich (Dimitry) executor and gave the whole of her estate to him, provided he survived her by one calendar month. Failing this she appointed Alexander Moiseenko (Alexander) as trustee and gave her estate in equal shares to him and to "Marianna Ioos, who resides in the USSR". Dimitry, died on 31 January 1997 and so the alternative dispositions are the relevant ones.

3 The plaintiff seeks a direction under s 63 of the Trustee Act 1925 (NSW) as to whether he would be justified in paying the half share last referred to the defendant (Marianna). He also seeks an order that his costs and Marianna's costs are to be paid out of Olga's estate. 4 The only persons beneficially interested in Olga's estate are the plaintiff as to a half share, and if the result of the present application is favourable to her, Marianna as to the other half share. The plaintiff has made the present application, not to contest Marianna's entitlement but because the facts raise a question as to whether Marianna is the person referred to in the will. Senior Counsel for the plaintiff frankly informed the Court that if his advice had been sought on the matter, that advice would have been that Marianna is entitled to the one half share. Nonetheless, the plaintiff seeks the protection of a direction under s 63. 5 Alexander survived Olga and became entitled to a one half share in her estate but he died on 29 March 2006. The executor of his will was June Crnjanin who died before administering the estate. There is affidavit evidence that the plaintiff became the legal personal representative of Alexander. It is the person or persons entitled beneficially to Alexander's estate who is or are now entitled to Alexander's half share. I was told that that person is the plaintiff alone. 6 According to the amended statement of question for opinion and advice, as at the commencement of this proceeding Olga's estate was fully administered and all debts, funeral and testamentary expenses had been paid other than any taxation liability and legal costs, and the residue of her estate was constituted. 7 The plaintiff commenced this proceeding on 30 April 2010. A little earlier, on 9 April 2010, Marianna, through her attorney, Igor Kazagrandi, had commenced another proceeding in this Division No. 2010/87336, against the present plaintiff as defendant. Shortly, in that proceeding Marianna seeks a revocation of the grant of letters of administration with the will annexed to the present plaintiff and associated relief. That proceeding is not fixed for hearing today but it is agreed that if I should give the direction sought by the plaintiff in favour of Marianna, that other proceeding should be dismissed. 8 The one half share to which Marianna may be entitled amounts to a little less than $300,000 and is invested with National Australia Bank in an interest bearing account. 9 Section 63 of the Trustee Act 1925 provides, 63 Advice

(1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

(2) If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee's own responsibility, to have discharged the trustee's duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.

(3) Rules of court may provide for the use, on an application under this section, of a written statement signed by the trustee or the trustee's Australian legal practitioner, or for the use of other material, instead of evidence.

(4) Unless the rules of court otherwise provide, or the Court otherwise directs, it shall not be necessary to serve notice of the application on any person, or to adduce evidence by affidavit or otherwise in support of the application.

(8) Where the question is who are the beneficiaries or what are their rights as between themselves, the trustee before conveying or distributing any property in accordance with the opinion advice or direction shall, unless the Court otherwise directs, give notice to any person whose rights as beneficiary may be prejudiced by the conveyance or distribution.

(9) The notice shall state shortly the opinion advice or direction, and the intention of the trustee to convey or distribute in accordance therewith.

(10) Any person who claims that the person's rights as beneficiary will be prejudiced by the conveyance or distribution may within such time as may be prescribed by rules of court, or as may be fixed by the Court, apply to the Court for such order or directions as the circumstances may require, and during such time and while the application is pending, the trustee shall abstain from making the conveyance or distribution.

(11) Subject to subsection (10), and subject to any appeal, any person on whom notice of any application under this section is served, or to whom notice is given in accordance with subsection (8), shall be bound by any opinion advice direction or order given or made under this section as if the opinion advice direction or order had been given or made in proceedings to which the person was a party. 10 The expression, "trustee" is defined in s 5 of the Act to include a legal representative, so there is no question of the plaintiff's standing to seek a direction under s 63. 11 The difficulty that has confronted the plaintiff may be seen to begin with a death certificate relating to Dimitry which shows that he had a child described in the certificate as "Maria deceased". According to the death certificate, which was issued on 3 November 2006, the informant was, "O. Lisevich", a reference, no doubt, to Olga. The particulars of Dimitry's death were registered on 18 February 1997. That was 18 days after Dimitry's death. Why would Olga have caused it to be recorded that her then recently deceased husband had a daughter, Maria, who had pre-deceased him if in fact Marianna was his daughter? This question has caused concern to the plaintiff. 12 A correction was made to the death certificate relating to Dimitry. The evidence does not reveal when or the circumstances in which the correction was made but a corrected death certificate issued on 15 March 2010 is in evidence showing that Dimitry had a child namely "Marianna 55". The informant remains shown as "O Lisevich" and the date of registration remains shown as 18 February 1997. In other words, the two death certificates are identical apart from the change mentioned, but there is nothing on the face of the later certificate to draw attention to the change. Both death certificates certify that they are a true copy of the particulars recorded at the time in the Register so both can be correct - it is the particulars recorded in the Register that have changed. 13 Marianna has made an affidavit stating that she is the child of Dimitry and Zoya Lisevich and was born in Harbin, China on 25 November 1941. She states that she was about 6 years of age (say 1947) when her parents, Dimitry and Zoya, were divorced in Harbin; that her father subsequently married Olga, her late stepmother; and that in about 1961 her late father and stepmother immigrated as stateless refugees to Australia. 14 Marianna says that she married her late husband Alexander Petrovich Ioos on 4 August 1964 and so became known as Marianna Ioos. That is the name under which she has made her affidavit. She says that her late father and stepmother stayed in regular contact with her after they migrated to Australia where she managed to visit them both, although most of their relationship was conducted by post and or telephone communication. 15 Marianna also states that Dimitry and Olga discussed with her their testamentary affairs and that she knew that she was appointed as a co-beneficiary in Olga's will. 16 There is in evidence an English translation of an extract from the Register of Births relating to "Marianna Lisevich" as having been born on 25 November 1941, the daughter of Dimitry Lisevich and Zoya Lisevich. Marianna says that she is the person referred to.

17 There is also in evidence an English translation of a certificate of the marriage of Marianna under the name, "Marianna Lisevich" to Alexander Ioos, the date of the marriage being 4 August 1964. The certificate of marriage refers to Marianna as having been born in 1941 in Harbin, in The People's Republic of China. Again, Marianna says that she is the person referred to. 18 On the basis that Marianna was 55 years old at the date of Dimitry's death, she would have been born in about 1941-1942, and this is consistent with the known date of her birth, 25 November 1941. 19 There is also in evidence an English language translation of Marianna's Russian passport. It is for Marianna Ioos born on 25 November 1941 in "Harbin, the People's Republic of China". The passport was issued on 9 March 2002. 20 Another curiosity concerns inquiries made by John Drakos Solicitors, who acted at that time for June Crnjanin, as executor of the will of Alexander who, it will be recalled had died on 29 March 2006. 21 Mr Drakos wrote on 1 November 2006 to a firm of attorneys in Moscow seeking assistance in locating the person named in Olga's will as, "Marianna Ioos who resides in the USSR". The firm was called "Iniurcolleguia International Lawyers". Within that firm, Tatyana L Mikhailova, lawyer, handled the matter. Ms Mikhailova replied on 30 November 2006 advising that her firm was in fact acting for Ms Marianna Ioos residing in the City of Krasnodar, Russian Federation. 22 The coincidence must have struck Mr Drakos and his client as alarming but it transpired that Ms Mikhailova had written to the Public Trustee in the State of New South Wales on 20 July 2006, that is to say, well before she received Mr Drakos's letter of 1 November 2006, stating that her firm had been approached by "Marianna Dmitrievna Ius of the City of Krasnodar, Russian Federation", with a request to assist her to obtain assets left to her following the death of her father Dimitry Lisevich. The letter referred to Dimitry as having died on 31 January 1997 in Australia where it was said that he had resided at a specified address in South Strathfield, 2136, Sydney, New South Wales. 23 The letter also asserted that Dimity's second wife, "Olga Avgustovna Lisevich" had resided at the same address but had died on 22 February 2006. The letter stated that Dimitry and Olga had no children in common and that Olga had no children of her own. The letter asserted that Dimitry had written to Marianna to the effect that he had left a will in her favour. 24 The details given in Ms Mikhailova's letter relating to Dimitry and Olga were apparently correct and, as noted earlier, preceded the letter from Mr Drakos. Accordingly, the letter lends some support to Marianna's claim to be the person referred to in Olga's will. 25 There is also in evidence an English translation of a letter purporting to have been written by Olga, apparently in May 1997, to Marianna part of which read as follows, Hello, my dear Mara!

Dear Mara, on January 31, 1997 our dear beloved husband and your father died. I could not write you about it as I was ill and it was very difficult for me to write to you. 26 There are other discrepancies revealed by the evidence, such as in the spellings of names and place of residence of Marianna (eg Marianna Dmitrievna Ioos, Marianna Ious, Marianna Dmitrievna Ius; Dimitry, Dmitry, Dimitri; Krasnodor, Vladisvostok). Notwithstanding the several discrepancies, perhaps the most notable one of which was the reference to "Maria deceased" in the original death certificate relating to Dimitry, the weight of the evidence supports a conclusion that Marianna is the person referred to in Olga's will as "Marianna Ioos who resides in the USSR". 27 The nature of the Court's jurisdiction under s 63 was explained by the High Court in Macedonia Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonia Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66. Although Marianna has been named as a "defendant", she is strictly not a "party" (ibid at [65]). In a proceeding under s 63, the Court gives "private advice" to the trustee (ibid at [64]). 28 Under s 63 a trustee places all relevant circumstances before the Court and seeks an opinion, advice or direction that in those circumstances the trustee would be justified in taking a certain course. It is a mistake to think that the trustee must "prove" facts according to a certain standard of proof to enable findings of fact to be made as would be the case in adversarial litigation. 29 I think that the plaintiff would be justified in paying the half share of the estate of Olga to Marianna and there will be a direction accordingly. 30 On the question of costs I was referred to certain authorities which I need not discuss. Whatever the position may be in relation to the costs of a person placed as Marianna is in other circumstances, in this case I think that she should have her costs out of the estate. That course is not opposed by the only other person beneficially interested in Olga's estate - the plaintiff. Moreover, Marianna's affidavit evidence has assisted the Court and the plaintiff by advancing relevant evidence. 31 The plaintiff, as trustee, should have his costs out of the estate. 32 In the administration proceeding, file 101908/08 in the Probate List in the Equity Division, an administration bond was furnished by Jana Crnjanin in a sum of $320,752.28, and that in the same proceeding, Peter Ronis of Shanahans Solicitors, Strathfield, in an affidavit sworn by him on 15 May 2009, furnished an undertaking to the Court in the following terms: Upon the provision of a grant of administration it is proposed that the real property of the Estate be sold and thereafter 50% of the net Estate be distributed to the Estate of the Late Alexander Moiseenko, and the remaining 50% share of the net Estate ("Marianna's share") be retained for distribution to Marianna Ioos upon verification of her location. In this regard, should this application be granted, I undertake to the Court to deposit Marianna's share with the Public Trustee pending her location. In the event the Public Trustee refuses to accept such deposit of Marianna's share, I undertake to hold Marianna's share in the trust account of Shanahans Solicitors of which I am Principal, or in a controlled monies account as a means of suitably protecting Marianna's share until such time as she is located. Upon discovery and verification of Marianna Ioos' locality, I propose to petition the Court for orders to distribute to Marianna Ioos, her share in the Estate of Olga Lisevich and to be released from my undertaking. In the event that Marianna Ioos is unable to be located I propose to then seek orders transferring administration of the Estate to the Public Trustee. [my emphasis]

33 In view of the direction to which I referred, there should be an order discharging the administration bond and an order releasing Mr Ronis from his undertaking to the court. Marianna raised no objection to this course. 34 Finally, as noted earlier, the parties are agreed that in the light of the direction given, the related proceeding 2010/87336 brought by Igor Kazagrandi as the attorney of Marianna should be dismissed. I will stand the proceeding down and allow the parties time to devise short minutes of orders. [Later the same day the parties brought in short minutes of orders in accordance with which orders were made in the three proceedings.]

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