Kolar v Dernovsek [2005] NSWSC 838 | Case summary

JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By Summons filed on 15 July 2004 Milko Kolar claims an order for provision for his maintenance and advancement in life out of the estate and/or notional estate of the late Dusan Dernovsek (to whom I shall refer as "the Deceased"). 3 The Deceased, who was unmarried and childless, died on 22 January 2004, aged 75. He left a will dated 10 October 2001, probate whereof was on 23 February 2004 granted to Magda Dernovsek and Vladimir Borisov, the executors named in such will (who are the Defendants to the present proceedings). 4 By that will the Deceased made gifts of three chattels (including a gift to the Plaintiff of a 1992 Mercedes Benz motor car), and gave three pecuniary legacies (including a gift to the Plaintiff of $25,000). The Deceased gave the residue of his estate to his sister Magda Dernovsek, the first Defendant herein. 5 The inventory of property discloses the following assets of the Deceased: House property situate at and known as 6 Drummoyne Avenue, Drummoyne, to which an estimated value of $3,100,000 was ascribed House property situate at and known as 1 Bridge Street, Balmain, to which an estimated value of $1,350,000 was ascribed Commercial and residential properties situate at and known as 17 Hollywood Avenue, Bondi Junction, to which an estimated value of $2,950,000 was ascribed Moneys held in bank accounts and term deposits, $317,060 Furniture and contents in Drummoyne property and Balmain property, having an estimated total value of $61,000 Loan under promissory note, $22,900 1992 Mercedes Benz motor car, having an estimated value of $16,600 Shares, having a total value of $15,031 Income tax credit, $37,694 Rental income, $14,579 Medical benefits refunds, $730 6 The totality of the assets of the Deceased in New South Wales are shown as having a total value of $7,885,603. No liabilities are disclosed. 7 The inventory of property also discloses the following assets solely owned by the Deceased overseas: Land and pine forest in Tirna, Slovenia House and contents in Sava, Slovenia 8 The will is expressly stated to take effect and operate only as regards that part of the estate and property of the Deceased which is situated in Australia at the date of the death of the Deceased. The will further states, that contemporaneously with the execution of this Will I am executing a separate Will which is to take effect and operate as regards that part of my estate and property which is situated outside Australia in Slovenia. 9 The jurisdiction of the Supreme Court of New South Wales to grant the relief sought by the Plaintiff is limited to the assets of the Deceased which are disposed of by the will of the Deceased which has been admitted to probate in New South Wales (Family Provision Act, sections 7 and 14(1)(a)). 10 The estate has been fully distributed. The legacy of $25,000 was paid to the Plaintiff and the motor car was transferred to him in about late March 2004. The real property has been registered in the name of the second Defendant. The property at Drummoyne has subsequently been sold by her for $3,350,000. 11 It will be appreciated that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account, since, irrespective of the outcome of the proceedings, the Defendants are entitled to have their costs paid out of the estate, and the Plaintiff, if successful, will also be entitled to receive his costs out of the estate. It is estimated by the Plaintiff that his costs total about $110,000 whilst those of the Defendants are estimated to total about $140,000. 12 It is appropriate here to record that the Plaintiff was legally represented from the institution of the proceedings until 4 May 2005. 13 On 10 December 2004, consequent upon application by the Plaintiff for expedition, the hearing was specially fixed for Monday, 2 May 2005, the Court reserving five days for the hearing (being 2 to 6 May 2005). At the commencement of the hearing and throughout 2 and 3 May the Plaintiff was represented by Solicitor and Counsel. On the morning of Wednesday, 4 May, Counsel for the Plaintiff informed the Court that, in the circumstances which she then outlined, the retainers of herself and her instructing Solicitor had been withdrawn by the Plaintiff. A notice of intention to act without a Solicitor, pursuant to Part 66 rule 6 (1) of the Supreme Court Rules, was thereupon filed on behalf of the Plaintiff. Thereafter the Plaintiff conducted his case in person, without legal representation. I should here record that the Plaintiff was fluent in the English language. 14 It was the case for the Plaintiff that he is an eligible person in relation to the Deceased, in that he is a person with whom the Deceased was living in a domestic relationship at the time of the death of the Deceased (paragraph (a)(i) of the definition of "eligible person" contained in section 6(1) of the Act); and also, in that he was partly dependent upon the Deceased and was a member of the same household of which the Deceased was a member (paragraph (d) of the foregoing definition). 15 It was not asserted on behalf of the Defendants that there is any other person who is or who may be an eligible person in relation to the Deceased. 16 It will be appreciated that, unless the Plaintiff is an eligible person in relation to the Deceased, he does not have the standing to bring the present proceedings, and his claim must be dismissed. 17 The Plaintiff was born in Slovenia on 7 August 1968 and is presently aged 37. After completing high school at the age of 19, he attended university in that country for two years, but did not complete his degree. In the mid-1990s the Plaintiff conducted a small grocery business in Slovenia, which he sold in about 1997. 18 In that year the Plaintiff came to Australia for a holiday, holding a tourist visa. He arrived in Adelaide in March 1997, and then came to Sydney in about June of that year. According to the Plaintiff he met the Deceased at the end of July 1997. 19 The Deceased, who had also been born in Slovenia, on 27 July 1928, had arrived in Australia in 1950. He became an Australian citizen in 1957. 20 The Deceased had been successful in Australia in his business activities and in his investments. He had also acquired a significant asset (the house property at Balmain) by inheritance. 21 It was the practice of the Deceased, in the later years of his life, to visit his native country of Slovenia at least once each year. It was quite apparent that the Deceased had a close relationship with the members of his family who remained in Slovenia. Those family members included his mother (who is now deceased), his sister Magda, the first Defendant, another sister (who is now deceased) and his nephew Vladimir, the second Defendant (who is the son of the first Defendant). The difference in surname between the two Defendants is explained by the fact that the marriage of the second Defendant's parents terminated in divorce, whereafter the first Defendant ceased to use her former husband's surname. 22 Each of the Deceased's mother and his now deceased sister visited him in Australia on several occasions. The first Defendant visited the Deceased in Australia on many occasions. Indeed, in 1960, she spent a period of a year staying with the Deceased in this country, at a time when she was suffering problems in her first marriage. The second Defendant regularly visited the Deceased in Australia. The second Defendant's wife Tatjana Borisov, also visited the Deceased in Australia in the later years of his life. When the foregoing kinsfolk of the Deceased came to Australia it was their invariable practice to stay with him in his residence at Drummoyne. Very considerable evidence was given by each of the Defendants and by the second Defendant's wife, Tatjana, concerning their observations of the Deceased's lifestyle and domestic circumstances during the periods of their respective visits to him and their occupation of the Drummoyne residence. 23 The Deceased in his later years suffered from a number of health problems. He had a heart condition which required by-pass surgery in 1987 and the insertion of a pace-maker in 1991. He continued to suffer from cardiac problems, and from conditions relating to his circulation, until the time of his death. However the cause of his death on 22 January 2004 was ultimately established to be a melanoma. Both the second Defendant and Mrs Tatjana Borisov were in Australia, staying at the Deceased's residence, at the time of his death. The first Defendant, who had been summoned urgently from Slovenia when the Deceased's health deteriorated in January 2004, arrived in this country on the day of his death, 22 January, after the Deceased had died. 24 At the time when the Plaintiff met him in 1997 the Deceased was residing in a house property which he had purchased in 1979, situate at and known as 6 Drummoyne Avenue, Drummoyne (to which I shall refer as "the Drummoyne residence"). The Plaintiff at that time was aged only twenty-nine or thirty. The Deceased was aged almost sixty-nine. 25 According to the Plaintiff, he and the Deceased soon became good friends and within a matter of two months had formed a sexual and emotional relationship. It was the Plaintiff's evidence that he spent about four days out of seven with the Deceased at the Drummoyne residence and that he helped the Deceased with shopping and with cooking, and in tending the Deceased's extensive collection of pot plants. The Plaintiff said that on a regular basis he and the Deceased together attended private dinner parties and places of public resort. 26 According to the Plaintiff's affidavit of 19 October 2004 he disbursed the legacy of $25,000 by paying $10,000 towards legal fees which he had already incurred, and by using the remaining $15,000 to pay what he described as "some of my outstanding accumulated debts at the time". 27 According to that affidavit, the Plaintiff's assets consisted of a minimal amount in a cash management call account with the Commonwealth Bank of Australia, Wynyard Branch; a motor vehicle (which I assume to be the Mercedes Benz motor car which he received under the terms of the will), which according to the Plaintiff was not in a driveable condition, to which an approximate value of $2,000 was ascribed, and household items, to which an approximate value of $1,000 was ascribed. 28 The Plaintiff's liabilities at that time consisted of the following, Accumulated private loans from friends - about $20,000 Pre-application fee to the Department of Immigration - $1,000 Outstanding utility bills - $1,390 Unsettled immigration fees - $21,300 Unpaid solicitors costs - $19,800. 29 According to the Plaintiff his current weekly living expenses were as follows: Rent - $420 Food - $100 Entertainment/hobbies - $70 30 It was the Plaintiff's evidence that since the death of the Deceased he had spent about $3,100 on medical, dental and health care costs. 31 The Plaintiff's current status in Australia was under a visa which did not allow him to work and did not allow him to study. It was the Plaintiff's evidence that he was "going through a period of financial instability and hardship caused by uncertainty attached with [sic] my visa status and immediate future in this country". From March 1998, when the Plaintiff's tourist visa expired, until December 1998, when he returned on a fresh tourist visa, the Plaintiff was out of Australia. Throughout that period he and the Deceased maintained regular contact, both by telephone and letter and in person during a visit by the Deceased to Slovenia and Italy. In August 2002 the Deceased and the first Defendant each wrote a letter in support of the Plaintiff's application for residence in Australia. That application was unsuccessful. 32 In his affidavit of 28 April 2005 (which was filed on 2 May 2005, on the first day of the hearing) the Plaintiff brought up to date the financial position which was disclosed in his affidavit of 19 October 2004. His assets had diminished, to consist only of household items (to which he ascribed a value of about $1,000) and an account with the Commonwealth Bank, having a credit balance of about $1,000. The liabilities disclosed in that affidavit included an application fee with the Department of Immigration in an amount of about $1,000, an indebtedness to Dr. Debbie Hill for about $300, what was described as "unsettled immigration fees" in an amount of about $21,300, and unpaid solicitors costs totalling about $75,000. 33 In his evidence in chief the Plaintiff said that he had very recently sold the Mercedes motor vehicle for $1,000, on 20 April 2005. Dr. Debbie Hill was a medical practitioner whom the Plaintiff had consulted. 34 It was also the Plaintiff's evidence in chief that he was indebted to various friends, from whom he had received loans in amounts totalling between $25,000 and $30,000. The Plaintiff said that he would repay those loans when he was able to do so.

44 In the light of the total conflict between the evidence of the Plaintiff on the one hand and that of the Defendants (and the other witnesses whose evidence was presented on their behalf) on the other hand, it is necessary for the Court to express its views concerning the reliance which should be placed upon the evidence of the Plaintiff and of the Defendants and of the other witnesses who were cross-examined. I have already observed that, for the Plaintiff, only the Plaintiff, Mr. Sasha Stevanovic and Mr. Neville Frank Saywell were cross-examined, whilst for the Defendants, only the Defendants themselves and Mrs Tatjana Borisov were cross-examined. 45 As has already been noted, it was part of the case for the Plaintiff that throughout the period of his acquaintance with the Deceased, and, indeed, to the present time, the terms of the visa under which he was present in Australia precluded him from working and from studying. In the affidavit evidence presented by him the Plaintiff asserted that he was not in employment and that he had no income. That evidence was false. It was a deliberate lie. The Plaintiff had been employed for most of the period that he was residing in Australia. Indeed, even after the death of the Deceased and to the time of the hearing the Plaintiff was in employment. Even a few days before the hearing the Plaintiff was still continuing to be employed, in a coffee lounge at Double Bay. A video film of the Plaintiff working in that position was shown during the course of the Plaintiff's cross-examination. An affidavit from the Plaintiff's current employer concerning the terms and periods of his employment was admitted into evidence on behalf of the Defendants. The attempts by the Plaintiff to explain the circumstances of his employment were unconvincing in the extreme, and indeed his explanations were themselves inconsistent. 46 The Plaintiff was cross-examined concerning the various applications which he had made to the Department of Immigration for permanent residence in Australia. In numerous particulars that information was revealed to have been false. 47 Despite the assertion on the part of the Plaintiff that his relationship with the Deceased, which he maintained was an emotional and sexual relationship, was an exclusive relationship, nevertheless, it appeared that throughout the period of his relationship with the Deceased the Plaintiff was in a relationship with at least one other person. The Plaintiff's attempted explanations to questions concerning this topic were evasive and inconsistent. 48 The Plaintiff has retained a number of solicitors and immigration agents to assist him in his endeavours to obtain permanent residence in Australia. In the period from 2000 to 2002 The Plaintiff retained Mr. David Bitel, Solicitor, of Parish Patience, who is a specialist in immigration law, to act for him in that regard. Subsequently various other solicitors and immigration agents have acted for the Plaintiff. It is quite apparent that the Plaintiff deliberately gave to Mr. Bitel totally false personal information, especially concerning the Plaintiff's relationship with one Arthur Lydgas. 49 It is not necessary for me to deal separately with each and every topic upon which the Plaintiff was cross-examined. Suffice it to say, that I regarded his credit to have been utterly destroyed during the course of his cross-examination. In a number of instances (especially concerning the matter of his employment and concerning the particulars stated in his various applications to the Department of Immigration) the Plaintiff under cross-examination admitted that the information earlier given by him had been false, and that he had lied to the Court. It was quite clear during the Plaintiff's cross-examination that he was prepared to give whatever answer he thought would advance his case, irrespective of the truth of that answer. I regarded the Plaintiff as being not only a totally unreliable witness, but one who was prepared to lie deliberately under oath and who, whenever it suited his purposes, made up his evidence as he went along. 50 Where the evidence of the Plaintiff was in conflict with the evidence of any of the witnesses on behalf of the Defendants, I reject the Plaintiff's evidence and accept that of the other witnesses. I should here record that I regarded each of the Defendants and Mrs. Tatjana Borisov as being totally reliable witnesses, upon the accuracy of whose evidence the Court could have complete confidence. The second Defendant was a particularly impressive witness, who gave the entirety of his evidence in English. 51 It is abundantly obvious, from such objective documentary evidence as the Plaintiff's application for a Driver's Licence, the various applications which he made to the Department of Immigration, various documents signed by the Plaintiff (in his capacity as "friend" or "family friend") relating to hospital admissions of the Deceased, and documents relating to various premises which the Plaintiff occupied (especially the residential tenancy agreement in respect to apartment 73, 103 Victoria Street, Potts Point, which the Plaintiff signed as one of the tenants on 10 April 2003), that the Plaintiff did not ever regard himself as residing at the Deceased's residence at Drummoyne, and that from April 2003 he considered his home to be the Potts Point apartment. In no contemporary document emanating from or signed by the Plaintiff during the lifetime of the Deceased did the Plaintiff state, or even suggest, that he was living at the Drummoyne residence. 52 I am satisfied that at no stage during the relationship between the Plaintiff and the Deceased - whatever be the nature of that relationship, and I consider that it was probably a close and affectionate relationship between a much younger man and a much older man (whether or not it was a sexual relationship only the Plaintiff now knows) - was the Plaintiff living with the Deceased. 53 The phrase "domestic relationship" is by section 6(1) of the Family Provision Act defined to have the same meaning as in the Property (Relationships) Act 1984. Section 5(1) of that latter statute provides that a domestic relationship is: (a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adults persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. 54 It was not submitted on behalf of the Plaintiff that he was in de facto relationship with the Deceased. Indeed, the evidence could not support such a finding. Under cross-examination the Plaintiff admitted that his relationship with the Deceased was not an exclusive relationship. 55 In respect to the submission on behalf of the Plaintiff that there existed between himself and the Deceased a close personal relationship of the nature described in section 5(1)(b) of the Property (Relationships) Act, I am satisfied that the Plaintiff and the Deceased were not living together. The Plaintiff on occasion gave the Deceased domestic support, and on very infrequent occasions gave him personal care (he showered the Deceased on two occasions at the Drummoyne residence and on one occasion in the hospital). But since the Plaintiff and the Deceased in my conclusion were not living together at any stage of their acquaintance, the Plaintiff has not established the existence of a close personal relationship with the Deceased. 56 Since I am satisfied that the Plaintiff and the Deceased did not live together, I am equally satisfied that they were never members of the same household. Further, although the Plaintiff was a frequent visitor to the Drummoyne residence and a recipient of the Deceased's hospitality, and, on occasion, the recipient of gifts from the Deceased (including a gift of $5,000 when the Plaintiff left Australia for Malaysia for the purpose of making an application, in the event unsuccessful, for permanent residence in Australia), nevertheless, the Plaintiff has not established that he was ever dependent upon the Deceased. Throughout the period of their acquaintance the Plaintiff resided independently (for a substantial part of that period at the Potts Point apartment) and was able to pay rent for such independent accommodation. Further, for most of that period the Plaintiff was in employment (albeit illegally), and was able to maintain himself from his earnings. 57 In those circumstances, I am satisfied that the Plaintiff is not an eligible person in relation to the Deceased within either paragraph (a) of the definition of that phrase contained within section 6(1) of the Family Provision Act (domestic relationship) or paragraph (d) of that definition (a member of the same household and partly dependent upon the Deceased). 58 I should here record that it was stated on behalf of the Defendants that, in the event (which has not occurred) that the Plaintiff be held to be an eligible person within paragraph (d) of the foregoing definition, the Defendants acknowledged that there were factors which warranted the making of the application, as required by section 9(1) of the Act. 59 Since the Plaintiff is not an eligible person in relation to the Deceased, he does not have the standing to bring the present proceedings, and in consequence, his claim must be dismissed. 60 I would, however, observe that, even if (contrary to the conclusion which I have just expressed) the Plaintiff were an eligible person in relation to the Deceased, nevertheless I am satisfied that the benefits which he received under the will of the Deceased, being a legacy of $25,000 and the gift of a Mercedes Benz motor car, were such that, in all the circumstances of this case, I would not be satisfied (in performing the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208) that the Plaintiff had been left without adequate provision for his proper maintenance. The Plaintiff was only one of a number of friends of the Deceased, and the provision which was made for him by the will of the Deceased was appropriate to reflect the nature of the relationship which obtained between the Deceased and the Plaintiff.

Kolar v Dernovsek

At a glance

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Before

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Judgment (21 paragraphs)

Parties

Cases Cited (1)

Cited By (1)