Solicitors:
Noel Brown & Associates (P)
File Number(s): 2015/238492
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Judgment
The background for this judgment is described in two earlier judgments: Brown as executor of the estate of the late Petar Vezmar (aka Peter Vezmar) [2015] NSWSC 1470 ("the first judgment") and Brown as executor of the estate of the late Petar Vezmar (aka Peter Vezmar) [2016] NSWSC 1752 ("the second judgment"), with which this judgment should be read. In the first judgment, I gave advice that the plaintiff would be justified in causing proceedings to be brought in the competent Serbian court for administration of the deceased's Serbian estate, and doing all things reasonably incidental thereto and acting upon the advice of Serbian attorneys in connection therewith. In the consequent Serbian proceedings, the Second Basic Court at Belgrade on 21 September 2016 identified as assets of the estate the real property at 81 Boze Jankovica (being the Belgrade property referred to in the first judgment) and foreign currency assets held with Eurobank, and proclaimed as heirs of those assets, Vera Acimov in respect of the Belgrade property, and the deceased's son Djordje Vezmar in respect of the foreign currency assets.
In the second judgment, I gave advice that subject to compliance with (NSW) Trustee Act 1925, s 63(8), (9) and (10), the plaintiff would be justified in distributing the estate on the footing that (a) the gift referred to in clause 6.1 of the will had taken effect, and (b) the gift referred to in clause 6.2 of the will and the trust referred to in clause 8 of the will had no operation. I extended to 42 days after receipt of notice under s 63(8) the period within which an application might be made under s 63(10). That advice was given for the reason that although the rights of beneficiaries were involved, in the circumstances of this estate its just quick and economical administration were best facilitated by recourse to judicial advice under s 63, subject to the safeguards contemplated by s 63(8), (9) and (10), which preserved the right of any adversely affected beneficiary to contest the advice before any distribution in accordance with it was made.
In the application of Brown as executor of the estate of the late Petar... [2018] NSWSC 965 | Case summary | Zoe
As explained in the second judgment, the adversely affected beneficiaries or potential beneficiaries are the son of Vera Acimov, Boris Miklusev (aged 39) and his daughter Brenda (aged 8), both of whom reside with Vera Acimov, and whose interests are relevantly identical.
On 1 March 2017, the executor sent to Boris and Brenda Miklusev, by International Registered Post in an envelope addressed to Boris Miklusev at Svetog Save 45, Apatin 25260, Serbia, letters addressed to them (including a translation into Serbian), which enclosed copies of the first judgment (and a Serbian translation of it), the Serbian judgment (and an English translation), and the second judgment (and a Serbian translation), and which summarised the effect of the second judgment, drew attention to the provisions of Trustee Act, s 63, and continued:
By this letter you are given notice that unless an application is made by you to the Supreme Court of New South Wales, it is the intention of Noel Brown, as executor, to administer the estate such that you receive no benefit under the estate of the deceased and that subject to the various entitlements under the will (of which you have none), to distribute the residuary estate to the deceased's son, Djordje (George) Vezmar.
Your attention is drawn to Section 63(10) and the order of Justice Brereton such that you have 42 days after receipt of this notice to make such application to the Supreme Court of New South Wales as you think fit. There will be no final distribution to the residuary beneficiary during that time. You may wish to seek legal advice in that regard.
If no such application is made, then you will be bound by the advice given by Justice Brereton in his judgments.
The envelope containing the letter and enclosures was received at a post office in Serbia on 8 March 2017. It was returned to Australia, marked "Non reclame", on 15 March 2017.
On 20 April 2017 the deceased's nephew Nikola Lukich sent a text message in the Serbian language to Nenad Milosevic, a friend of the deceased who resides in Belgrade, inquiring whether "Boris" had received the letter from "Noel"; the reply forthcoming was:
He told me that he is not interested. He received notification from the post office that he had a letter from Australia.
On 27 April 2017, Nikola Lukich sent a further message, requesting Milosevic to tell Boris to collect the letter, so that matters could be finalised. Milosevic replied that he would do so, but that Boris had told him that he did not care (in rather less elegant and more forceful terms).
On 30 August 2017, in the presence of Mr Brown and Djordje Vezmar, Nikola Lukich telephoned Boris and they had a conversation in the Serbian language. After Lukich introduced himself and referred to the letter sent by Mr Brown, Boris responded "I'm not interested in the letter. I'm not interested in anything Australia has", and then uttered a long list of Serbian vulgarities and expletives. Lukich said "I'm trying to solve an issue here", to which Boris responded "I'm not interested in anything you have to say. I'm not interested in the letter or anything sent to me from Australia. Don't call me ever again".
The plaintiff now seeks leave to file a motion claiming advice that in the events which have happened, he has complied with Trustee Act, s 63(8) and (9), and is justified in distributing the estate on the footing referred to in the second judgment.
The effect of s 63(8), (9), (10) and (11) is to require that where judicial advice is given under s 63 on a question that affects the rights of beneficiaries, then before a trustee conveys or distributes property in accordance with the Court's advice, and unless the Court otherwise directs, notice of the trustee's intention to do so must be given to any person whose beneficial rights may be affected, and to render any person to whom such notice is given and who does not apply to the court, bound by the advice as if a party to the proceedings.
Advice has already been given, in the second judgment, as to the distribution of the estate, subject to compliance with s 63(8), (9), (10) and (11). The only remaining issue is whether that condition has been satisfied. Neither the Trustee Act, nor the rules of court, prescribe how "notice" under s 63(8) is to be given (although s 63(9) covers the content of the notice). In particular, there is no requirement for personal service.
The requirement to give notice is one to bring the matter to the notice of the person to be notified. As it seems to me, reasonable steps have been taken to bring the effect of the advice and provisions of s 63 to the notice of Boris, who has overtly eschewed any interest in the matter. On the other hand, Boris has not actually received notice of his right to dispute the advice.
In my view, in those circumstances and the general circumstances of this estate, the trustee should not be required to undertake further steps to bring the advice of the court and the opportunity to make an application to the Court to the notice of Boris. Reasonable steps to do so have been taken, and if they have been unsuccessful, the responsibility for that lies on Boris. For the reasons given in the previous judgments, an argument for a construction of the will that favoured Boris and Brenda over the position reflected in the advice given in the second judgment appears to face very considerable obstacles.
In my view, the appropriate course in the circumstances is simply to dispense with any further requirement for notice under s 63(8). That will then leave the executor at liberty to distribute in accordance with the advice given in the second judgment. Whether Boris is bound by the advice in those circumstances need not be resolved: the executor will have the protection of the judicial advice. However, lest there prove to be any difficulty with this course, I shall reserve liberty to apply.
The court therefore orders that:
1. Upon the undertaking of Noel Mockett Brown, solicitor, to pay the appropriate filing fee, the plaintiff have leave to file a notice of motion in the form initialled by me, dated this day and placed with the papers.
2. The notice of motion be returnable in chambers, instanter.
3. Pursuant to (NSW) Trustee Act 1925, s 63(8), the requirement to give any further notice to Boris and Brenda Miklusev before conveying or distributing any property in accordance with the advice of the Court given on 9 December 2016 be dispensed with.
4. There be liberty to apply by arrangement with my associate.
5. The plaintiff's costs of the motion on the indemnity basis be paid or retained out of the estate of the deceased.
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Decision last updated: 27 June 2018