Rogic v Samaan

Supreme Court of NSW|2018-09-19|Before: Kunc J

Summary

The plaintiff, Radan Rogic, married the late Ljubica Pacic in April 1989 after an acquaintance of five months. Radan was then 31 years old and Ljubica was almost 43 years old. They were divorced on Ljubica's application in December 1992. They had no children and there was no property settlement.
Ljubica died from cancer in July 2015 at the age of 69. In the twenty-two years between her divorce from Radan and her death, Radan was married for thirteen years to another woman with whom he had two children. Radan's second marriage also ended in divorce. Although the extent of their friendship is a matter of controversy, the Court accepts that Radan and Ljubica remained on socially friendly terms after their divorce and that Radan was one of several people who provided care and support to Ljubica at the end of her life.
Ljubica's only substantial asset was her home at Canley Heights (the "Property"). She had purchased it subject to a mortgage in 1985, nearly four years before she married Radan. The Property has been sold and the proceeds are being held pending the outcome of these proceedings.
Ljubica made three wills after her divorce from Radan. Despite their friendship after their divorce, Radan was neither a beneficiary nor the executor under any of those wills. Ljubica had no family in Australia. Each of those three wills left her estate to her family in the Serb Republic of Bosnia and Herzegovina (the "Serb Republic"). The third will, made in April 2015 (the "2015 Will"), appointed the defendants, Irene Samaan and Mile Gorgioski, as executors. Probate of the 2015 Will has been granted to Irene and Mile, who are not beneficiaries under the 2015 Will. The beneficiaries are Ljubica's nieces and nephew in the Serb Republic.
Radan alleges that at the time he married Ljubica in 1989, she told him that she still owed $12,000 on the mortgage over the Property. Radan's claims in these proceedings are based on two fundamental allegations. First, he says that he gave Ljubica a lump sum of $7,000 or $7,500 and other funds, and thereafter his entire wages, which enabled Ljubica to repay the mortgage early and then be applied by her to meet their expenses as a married couple. Second, he alleges that at the time of their divorce Ljubica told him "When I die, Radan you will inherit the home" (the "Alleged Representation"). Radan says that, in reliance on the Alleged Representation, he did not apply for a property settlement.

The facts

I will first set out the Court's findings of fact. For ease of understanding I will do so as a narrative. Where a fact has no cross-reference, it is based upon such contemporaneous documents as were in evidence or was a matter not in dispute. Where there was a dispute about a fact, there is a cross-reference to a later section of this judgment where the reasons in respect of that particular fact will be found.
Ljubica was born on 3 May 1946.
Radan was born on 4 November 1958.
Ljubica and her friend Antoni Szadkowski had known each other from before Ljubica bought the Property. They met when they were both renting rooms in the same house in Liverpool.
Ljubica bought the Property on 29 November 1985 for $54,000, subject to a mortgage of $34,000 to the Commonwealth Bank of Australia (the "Mortgage") with monthly repayments of principal and interest of $397.
Radan arrived in Australia on 26 November 1988 on a tourist visa and moved in with his brother.
The next day, 27 November 1988, Radan's brother introduced Radan to Ljubica.
On 30 April 1989, Radan (then aged 31) married Ljubica (then aged nearly 43).
Radan gave some money and his pay to Ljubica during the course of their marriage. In the absence of any contemporaneous financial records or other corroborating testimony, the evidence does not permit the Court to make a finding as to how much of Radan's income was applied to discharge the Mortgage. See paragraphs [86] to [99] below in relation to this conclusion.
A discharge of Ljubica's mortgage over the Property was registered on 11 August 1989.
Between 24 June 1990 and 30 December 1990, Ljubica was in Europe including visiting her relatives in what was then Yugoslavia.
Sometime in mid-1991, Radan and Ljubica commenced living separately but under the one roof.
In 1992, Ljubica commenced divorce proceedings in the Parramatta Registry of the Family Court of Australia. On 30 November 1992, the decree nisi was pronounced. One of the reasons Radan left the relationship was that Ljubica was unable to have children and he wanted to have children. Radan also alleges that Ljubica developed a drinking and gambling problem. It is not necessary for a finding to be made about this and the Court refrains from doing so.
In 1992 or 1993, Senija Radojcic and her husband meet Ljubica and Radan.
On 31 December 1992, Ljubica and Radan's marriage was finally dissolved. The Court is not satisfied that at this time or any other relevant time Ljubica made the Alleged Representation or that she expressly or impliedly represented to Radan that if he did not pursue a property settlement, she would leave him the Property. See paragraphs [100] to [106] below in relation to this conclusion.
After their divorce and up to 1998, Ljubica and Radan maintained a social relationship, although the evidence does not permit the Court to make a finding as to its frequency and the extent to which (if at all) it included sexual relations. See paragraphs [107] to [114] below in relation to this conclusion.
On 20 June 1995, Ljubica made a will leaving the whole of her estate to her brother and sister-in-law, residents of the Serb Republic. If they were to pre-decease her, then her estate was to pass to their children (who are the beneficiaries under the 2015 Will). The executor under this will was Momo Buac, who was not otherwise referred to in the evidence. The will includes a request that Ljubica be buried in the Serb Republic.
Radan sustained a back injury in 1996.
In 1996, Senija's husband died and her friendship with Radan and Ljubica "slowly withered away" (Senija's words). She maintained intermittent contact with Radan, with the friendship rekindling after Radan's divorce from Zorka in 2011.
In or around 1996 to 1997, Mile met Ljubica.
Irene met Ljubica in December 1998, when a friend of hers (Trajce) was renting a room from Ljubica at the Property.
On 21 June 1998, Radan married Zorka, with whom he had two daughters (aged 14 and 16 at the date of hearing). Radan and Zorka would see Ljubica from time to time socially.
In 1999, Radan received approximately $260,000 from a successful workers compensation claim in relation to his back injury. He applied this money to purchase the matrimonial home he shared with Zorka.
For several years until around 2006, Ljubica was in a relationship with a Polish man named Stasko.
In 2010, Radan had a kidney transplant.
In 2011, Zorka "threw [Radan] on the street" (Radan's words) and they subsequently divorced.
By 2013, Ljubica was feeling quite unwell. On 28 March 2013, while driving Ljubica to the doctor, Radan and Ljubica were involved in a car accident in which they both suffered injuries.
In April 2013, Ljubica was diagnosed with bowel cancer.
On 11 July 2013, Ljubica made a new will. She appointed Mile (described in the will as "my friend") as executor and, after a legacy to him of $15,000 in lieu of commission, she gave her whole estate to her nieces and nephew, being the children of her (now) deceased brother. They are the same beneficiaries who take under the 2015 Will. She included a request that she be buried in Serbia.
Radan saw more of Ljubica again after his divorce from Zorka, including Ljubica giving Radan a few days' accommodation after Zorka threw him out. After her cancer diagnosis and as she grew sicker, particularly in the last months of Ljubica's life, Radan, Senija, Irene, Mile and other members of the Serbian community visited Ljubica. They variously provided her with food, personal care and the like. Radan drove Ljubica to medical appointments. He also drove Senija and others to bring food to Ljubica. Irene also drove Ljubica to some medical appointments. In the last three months of Ljubica's life, Irene and Mile generally came in the morning and Senija and Radan came in the evening. See paragraphs [107] to [114] below in relation to these findings.
On 6 June 2014, Ljubica and Irene bought adjoining burial plots at Riverstone Cemetery.
In October 2014, Radan received $95,579 from the sale of the home he had owned with Zorka.
In early 2015, Ljubica needed a full-time carer in order to be released from hospital. She asked Antoni to do this. He agreed. Antoni undertook that role, including receiving a carer's benefit, from late March 2015. He thereafter lived with Ljubica at the Property until her death nearly four months later.
On 16 April 2015, Ljubica made the 2015 Will. This describes Mile and Irene as "my friends" and no longer contains a direction for her burial in the Serb Republic. This omission is consistent with her purchase of a burial plot at Riverstone Cemetery (see paragraph [41] above).
Ljubica died on 24 July 2015 at the age of 69.
On the day of Ljubica's death, or within days afterwards, Radan learned that he did not benefit under the 2015 Will.
The limitation period for bringing a claim under the Act expired on 24 July 2016.
Probate of the 2015 Will was granted to Irene and Mile on 28 February 2017.
On 26 May 2017, Radan lodged a caveat over the Property. The particulars of his estate or estate were described as "interest pursuant to resulting and/or constructive trust. Interest pursuant to ss 57 and 59 of Succession Act 2006". The facts said to give rise to the interest were given in the caveat as "Caveator is ex-husband of deceased as well as her de facto at the time subsequent to their divorce. The caveator contributed funds towards acquisition, preservation and/or maintenance of the property, as well as towards discharge of the mortgage."
On 3 June 2017, the Property was sold at auction for $935,000. By arrangement between the parties the net proceeds, which in effect constitute Ljubica's estate, are being held pending the outcome of these proceedings.
On 29 September 2017, Radan received $157,435.55 in respect of the car accident that had occurred in 2013 (see paragraph [37] above).
These proceedings were commenced by summons filed on 15 June 2017, eleven months out of time.

The estate

The gross distributable value of the estate is approximately $930,000. Irene and Mile intend to claim 4% commission. Irene and Mile's costs of the proceedings (including disbursements and counsel's fees) up to and including the hearing are $99,000 inclusive of GST on the indemnity basis. The equivalent figure for Radan's costs is $165,000 (his solicitor not having provided an estimate on a party/party basis).

Radan's circumstances

At the time of the hearing, Radan was nearly 60 years old. A report from his treating doctor said "Mr Rogic is a seriously sick man and has multiple health problems". The report identified his most important health issues as arising from his kidney transplant in 2010 and the fact that he suffers from insulin dependent diabetes, which developed as a result of the kidney transplant. He also suffers from unstable blood pressure, obesity and fatty liver and has degenerative cervical and lumbosacral spine disease. He is on permanent immunosuppressant therapy for his kidney transplant which he will require for the rest of his life.
Radan is only able to walk short distances, cannot lift more than two kilograms and needs to avoid frequent bending, pulling and pushing. According to his treating doctor, Radan is able to drive up to 30 minutes with occasional stops for rest.
His doctor's prognosis was "that a combination of kidney transplant with insulin dependent diabetes, obesity and spinal problems even with treatment will significantly reduce his lifespan". His doctor's conclusion, which I accept, is that Radan is unfit for any type of work. I infer that he will therefore remain on a disability support pension for the rest of his life.
The parties agreed that Radan has $265,000 in cash. He also has a car and furniture which together he valued at $6,000. He owns no real property and lives in rented accommodation in Cabramatta paying $150 rent per week.
Radan's only source of income is the disability support pension, which varies around $878 per fortnight (which is after a deduction for child support payments of approximately $16 per fortnight). His expenses approximate his income. Nowhere in his evidence is there any suggestion that he is unable to pay his bills, although the Court accepts that he does not have much left over. The cash which he has is largely the product of the payments referred to in paragraphs [42] and [51] above and a recent $20,000 windfall from the weekly membership draw of a club to which he belongs.
In particular, insofar as family provision was concerned, Mr Blank submitted that Radan should receive a cash sum which, when added to his existing $265,000, would leave him with enough money to meet his rent for the rest of his expected life. Other than what I have referred to in paragraph [56] above, there was, however no evidence of Radan's life expectancy. Any family provision, it was submitted, should be in addition to what he might recover from his equitable claim.

The beneficiaries' circumstances

The beneficiaries under the 2015 Will all live in the Serb Republic, also referred to in the evidence as Bosnia. I accept that their financial and personal circumstances did not permit them to come to Australia to give evidence. Evidence about the beneficiaries' circumstances - which I reproduce in the following paragraphs - was provided on information and belief by the defendants' solicitor based on a telephone conference he had with them on 16 March 2018 with the assistance of a Serbian interpreter. They were not available for cross-examination. While I am conscious of the principles which suggest a degree of caution in accepting evidence that cannot be tested, Mr Blank ultimately did not object to the evidence being admitted and, given the nature of the evidence as going to the beneficiaries' circumstances rather than contested issues of fact, I accept it. At the date of these reasons, A$1 is approximately €0.62.

Stana Dermanovic

Stana Dermanovic is a niece of Ljubica. Ms Dermanovic gave the following information in the interview : 1. She is 34 years old; 2. She is single; 3. She is in good health; 4. She has no assets or liabilities; 5. She has been employed for 12 years in a German sewing factory making €300 per month; 6. She finished High School in 2002, qualified in sewing; 7. She pays her share of €75 rent per month for a two-bedroom unit that she shares with her sister Danika; 8. She spends all her money on day-to-day living expenditure; 9. She owns a 1985 Volkswagen Vista worth approximately €1000. 10. She will use the inheritance money to purchase a flat which would cost around €50,000-€100,000. She would purchase a new car and generally use the money to live better. 11. She had never heard of Radan prior to the commencement of these proceedings. 12. She said she was in constant telephone contact with Ljubica. Ljubica informed her that under the 2015 Will the estate was being left to her, her brother and sisters.

Ljubica Milojevic

Ljubica Milojevic is a niece of Ljubica and sister to Stana. Ms Milojevic gave the following information: 1. She is 37 years old; 2. She lives 50km away from Banja Luka City in Bosnia-Herzegovina; 3. She is married with three children all under age seven and a half years old; 4. She lives with her husband; 5. Her husband works as a handyman at school, and makes €100 per month; 6. Ljubica, her husband and children live with her parents-in-law who own a very small chicken, sheep and vegetable farm. The farm makes around €3,000 -€4,000 per year selling cheese and eggs. 7. On the farm they produce their own food; 8. She lives on enough to get by; 9. She and her husband have no savings or assets; 10. She is of good health; 11. Her husband has some health issues. He had an artery unblocked in 2016; 12. Her children are in good health; 13. She will use the inheritance money to purchase a home in the city close to a school. The only school in the area is in the city. Houses in the city are over €100,000; 14. She had never heard of Radan prior to the commencement of these proceedings; 15. She was in constant telephone contact with Ljubica; 16. She knew that Ljubica was leaving the inheritance in her (Ms Milojevic's) name and also in the name of her brother and sisters.

Vaselija Dermanovic

Vaselija Dermanovic, Ljubica's nephew, gave the following information: 1. He is 32 years old, single and in good health; 2. He and his mother live in a village in a 90-year-old house worth about €5000. The property is under his late father's name. His father passed away in 2009. They can't afford to transfer the property to his mother's name; 3. His mother is 68 years old, and suffers from diabetes; 4. He went to school, high school and farming school; 5. He is employed at the same factory as his sister Stana. He also grows vegetables at home and sells them. He makes €300 per month; 6. His sisters live in a small city formerly known as Bosanska Gradiška (now just Gradiška); 7. He has no liabilities; 8. He inherited an old tractor from his father worth around €1500; 9. He spends all the money he makes. He contributes towards his mother's medicine and house bills; 10. He says he is too poor to marry and have children; 11. He had never heard of Radan prior to these proceedings. 12. He knew that the deceased was leaving the inheritance in his name and his sisters after his father's death. He stayed in contact with deceased.

Danika Dermanovic

Danika Dermanovic, the deceased's niece, gave the following information: 1. She is 35 years old and lives with Stana; 2. She works in the same factory as Stana; 3. She earns €300 euro per month; 4. She has problems with her head and spine and she had these disabilities since birth. She walks bent over; 5. She has the equivalent of a high school education and some education designing clothing; 6. She takes medicine for her disability which costs about €50 per month; 7. She pays rent of €75 per month; 8. She has no assets and no liabilities and spends all the money she makes; 9. If she received money from the inheritance, she would use it to purchase a house or flat for security and also use it to treat her disability; 10. She had never heard of Radan prior to these proceedings; 11. She and Stana always telephoned the deceased; 12. She knew that the deceased was leaving the inheritance in her name and also in the name of her brother and sisters.

Principles in relation to credit and disputed facts

I set out a summary of the principles in relation to credit and making findings where facts are disputed in Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964: "464 First, at the forefront of the Court's approach has been the oft cited statement of McClelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 318-319: Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction (1995) 49 NSWLR 315 at 319 rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. 465 Second, the concept of actual persuasion was elucidated by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56: 48. Under s 140(2) of the Evidence Act 1995 (Cth) (the Evidence Act), the Court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account: ● the nature of the cause of action or defence; ● the nature of the subject matter of the proceeding; and ● the gravity of the matters alleged. When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2). 466 Third, there is the statutory successor of the rule in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in s 140 of the EA: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 467 Fourth, evidence is to be preferred which is inherently probable in the circumstances or is given by a witness against their interest. 468 Fifth, evidence of independent witnesses, i.e. persons who have no reason to be partisan, may be decisive in resolving the conflicting evidence of interested parties. 469 Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness' evidence in its entirety. This approach was expressed by O'Loughlin J in Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1: 118 Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions. … 121 A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected. 470 Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings: 155 There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. 156 Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]. 471 Eighth, disbelieving a witness that "X" was the case does not mean that "not X" has been proven. The Court respectfully adopts what fell from Gibbs J (as his Honour then was) in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694 (citations omitted): The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd [1911] HCA 34, (1911) 13 CLR 230, at p 241 ; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p 21 . It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail [1905] HCA 25, (1906) 2 CLR 684, at p 698 ; Malzy v. Eichholz (1916) 2 KB 308, at p 321 ; Ex parte Bear; Re Jones [1945] NSWStRp 50, (1945) 46 SR (NSW) 126, at p 128 ), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King [1924] HCA 9, (1924) 34 CLR 153, at p 158; Tripodi v. The Queen [1961] CHA 22, (1961) 104 CLR 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell (1961) WAR 103, at p 109. 472 Ninth, for reasons set out in Saravinovski (No 5) at [76] and following, the Court gave leave for certain of Chris' affidavits to be relied upon, notwithstanding that his loss of mental capacity meant that he could not be cross-examined. The way such evidence should be treated was considered by Hallen J in Fulton v Fulton [2014] NSWSC 619: 111. However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35, [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 86, per Hamilton J, at [5]. 473 Tenth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. This case has many similarities to the family dispute considered by Robb J in Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said: 187. The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations."
Because this is a case where critical conversations and transactions were alleged to have occurred with Ljubica, who of course is now deceased, I also gratefully adopt and apply what was recently summarised by Hallen J in Papas v Co [2018] NSWSC 1404: "54. It is also necessary to bear in mind the careful scrutiny to which evidence about conversations with, or between, one, or other, of the parties, and the deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544, per Isaacs J, at 548-549. This is because he is unavailable, at the hearing, to admit, or directly deny, specific allegations. 55. McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20]…. 58. Also, a Court, in cases involving events, some of which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160, at [157] (Martin J); Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) at [15] - [22]. 59. More recently, the Court of Appeal in Queensland wrote, in Guirguis Pty Ltd v Michel's Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83, at [50]-[51]: "Most experienced judges subscribe to the view expressed by Goff LJ in Armagas Ltd v Mundogas SA (The "Ocean Frost") that it is essential 'when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities'. Goff LJ was referring to cases of fraud, but the statement is of general application. As Goff LJ observed in the same passage: 'It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.' This is not a recent revelation. About 60 years earlier, for example, Atkin LJ, after observing that 'an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour', confirmed that trial judges were encouraged 'to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events'. The primary judge's failure to consider and make findings about many aspects of the evidence, including evidence relevant to causation, deprived his Honour of those important tools for judging the credibility and reliability of the contentious oral evidence." (Citations omitted) 60. I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, at 431: "'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." 61. The circumstances of this case, also make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122-123 (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15, at [15]), appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time." … 70. Recently, in Hintze v Tsering [2018] NSWSC 1190, Sackar J dealt with the issue of remaining silent when speech could have been expected, or failing to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected. In this case, the allegations of not having signed the Transfer, and of not being aware of the transfer of the Guildford property out of her name, are matters of some significance. 71. I respectfully adopt what his Honour wrote at [58]-[61]: 'It is well established that remaining silent when speech could have been expected, or failing to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected, may amount to an admission, and is at least relevant evidence. A failure to complain regarding breach after becoming aware of the true facts may enable the court to infer that the conduct was not relied on. A failure to complain may adversely affect the credibility of a witness. A failure to complain may also be relevant for the element of reliance in estoppel, or the adoption of the relevant assumption.' (Citations omitted)"

Radan

In a case with almost no contemporaneous documentary evidence, and where statements attributed to Ljubica cannot be tested, the Court's assessment of Radan's credit assumes particular importance. For the reasons which follow, I came to the view that Radan was not a reliable witness. In saying that, I do not suggest that he was deliberately lying. Nevertheless, the combination of the passage of time, a tendency to be dogmatic in the face of such contemporaneous evidence as there was, and (incidentally to his dogmatic approach) a tendency to extemporise or exaggerate, leave me unable to be satisfied to the requisite standard of essential matters which rely upon his word alone.
At the heart of my concerns about the reliability of Radan's evidence, and relating to one of the most central aspects of the case, was his departure from his affidavit evidence in the witness box in relation to where he says he obtained the funds which he says he gave to Ljubica to pay off the Mortgage. In more than one place in his principal affidavit (see paragraphs [95] to [97] below), Radan asserted that at the time of his marriage to Ljubica he had about $9,000 in savings and that he gave her $7,000 or $7,500 to reduce the Mortgage. However, it emerged in cross-examination that he did not have that amount of savings and that his brother had loaned him $3,500 towards the amount he gave Ljubica. There was nothing about this in his affidavit. He accepted in cross-examination that, contrary to his affidavit, he did not have $7,000 or $7,500 in savings in April or May 1989.
A further reason why I am unable to accept his reliability on this critical matter is that even in the course of his cross-examination, his evidence was inconsistent. Initially (T36:33) he said that his brother loaned him $3,500. A few minutes later (T48:33) he said "I borrowed from my brother $3,000 to pay off the house". In a case where the only evidence for the amount of contribution claimed by Radan is his own, uncorroborated testimony, I regard such discrepancies as casting real doubt on the reliability of his evidence in its particulars.
Insofar as what I consider to be Radan's tendency to be dogmatic about his recollection or to extemporise his evidence, three examples will suffice.
First, when asked about how long Ljubica was away on her holiday to Serbia during their marriage, he adamantly maintained that it was four months. He continued to do so in the face of being shown her passport, which clearly demonstrated that she was away for six months. He ultimately retreated to an answer of "I never actually followed that" (T29:31). In have no doubt that he genuinely believed it was only four months. However, for the purposes of this case I regard this as a telling example of how a sincerely held recollection of a long ago event (1990) can be proven wrong by simple, contemporaneous evidence.
Second, during his cross-examination he asserted, for the first time in the evidence, that when he was driving Ljubica to the doctors on one occasion she told him that if she died "someone" would call him about the Property. This evidence was nowhere in his affidavit. This then produced a good example of his dogmatic approach when it was put to him that at or about the time of Ljubica's funeral he was told that he was not in the 2015 Will. He instantly denied that and said he found out "when nobody was contact - calling me, when the house was selling…nobody was contacting me but house was on sale" (T58:11-19). He was adamant about that until it was pointed out to him that his own affidavit evidence was to the effect that at about the time of Ljubica's death Mile told him that Ljubica had not left him (Radan) anything in the 2015 Will.
The third example is what I consider to be his increasingly incredible evidence about the circumstances of his divorce from Ljubica. His affidavit evidence on the point was already somewhat difficult to follow, in circumstances where he accepted that Ljubica had initiated divorce proceedings, but he also gave evidence that she wanted him to stay. In the course of his cross-examination he went on to describe her commencing the divorce proceedings as a "mistake" and that he was "begging her to get me back" (i.e. to marry him again) (T44:22-28).
Radan's evidence was that Ljubica had initiated the divorce because he (Radan) couldn't put up with her drinking and her gambling. This self-sacrificing approach to a divorce seems to me to be implausible unless independently corroborated. When I asked about whether he had told her not to go ahead with the divorce he said "I did beg her but it was already lodged. She said, "I have lodged it" and I just received a letter to go to Parramatta." (T44:50-45:1). In short, his evidence on this point struck me as increasingly strident and fanciful.
I should record that I have not overlooked the dispute in the evidence about whether or not Ljubica drank and gambled during the course of her marriage to Radan and for some time thereafter. Radan and Senija give evidence she did. Irene and Mile give evidence otherwise. Antoni is silent on the topic. Given the partisan nature of the witnesses' evidence and the absence of independent corroboration, I am unable to make a finding and decline to do so. In any event, this allegation was ultimately irrelevant to the resolution of the proceedings.
Although this observation is also relevant to why I am not satisfied there was any "agreement" of the kind alleged by Radan, it is appropriate that I record at this point my impression that his evidence was strongly coloured by what I accept was his genuine belief that his contributions to paying off the Mortgage, together with the Alleged Representation (with no causal connection expressed either way between the two), gave him an entitlement to the Property.
He said as much in his principal affidavit affirmed on 13 September 2017 (the "September Affidavit"): "100. As a result of the contributions I made towards the mortgage, which resulted in the Property being paid off during the Deceased's lifetime, together with the statements made by the Deceased in expressing a wish for me to inherit the Property on her death, I believed that I was entitled to the Property."
A similar theme emerged - revealingly not referring to the Alleged Representation - in this exchange I had with Radan at the end of his evidence (T61:6-24) (emphases added): Q. On another topic. Can you tell me in your own words what it is you say entitles you to an interest in Mrs Pacic's house? A. INTERPRETER: Well if I know what I was entitle on I wouldn't come here before you. Whatever law gives me I am here before you so adjournments are there before you. Q. But what is it you say you did that will be the basis on which the Court should give you an interest in her house? A. INTERPRETER: I did a lot for her before her death. When she got ill I used to help her, taking her to the doctors and bringing her food. My witness she actually fed her. She was changing her clothes. Q. Is there any other reason why you say you have some entitlement - I'm not asking you about the law, I'll just make that clear to you, I'm just asking you to tell me in your own words is there any other reason why you say you are entitled to some interest in the house? A. INTERPRETER: I do have a right - I do have an entitlement on that house because she was my wife and we paid off that house. I love her even now. Every, every fortnight I go visit her grave."

Senija

Senija was called in Radan's case. I came to the conclusion that she could not be treated as an entirely independent witness. She was very much in Radan's "camp". This was apparent from her clear dislike of Irene and Mile.
I treat her evidence with some caution, except where it is inherently credible, against Radan's interest or corroborated by reliable, contemporary evidence. In particular, I discount her efforts to downplay the role played by Irene and Mile in assisting Ljubica.

Irene and Mile

It is convenient to consider Irene and Mile's credit together. Irene and Mile are not beneficiaries under the 2015 Will, although they do claim an entitlement to commission. Nevertheless, in those circumstances it might be expected that they would fall into the category of relatively independent witnesses. However, this was not borne out by the way they gave their evidence.
Irene and Mile both demonstrated a clear dislike of Radan and I formed the view that their evidence was coloured by that. I accept Mr Blank's submission that, for whatever reason, it would appear that they resent Radan for having brought this claim. I therefore treat their evidence in the same way as I treat Senija's, namely with some caution, except where it is inherently credible, or against their interest (such as it is) or corroborated by reliable, contemporary evidence. In particular, I discount their efforts to downplay the role played by Radan and Senija in assisting Ljubica.

Antoni

Antoni impressed me as the only independent and reliable witness. He gave his evidence under cross-examination in a straightforward manner and in a fashion that did not betray any consciousness or concern about the effect of his answers on the case. In the midst of other witnesses who were trying to downplay each other's roles in Ljubica's life, it struck me as refreshingly honest that when it was put to him that Irene and Mile said they had hardly ever seen Radan visiting Ljubica in her final illness, Antoni answered immediately to the effect that Irene would come to the Property in the morning whereas Radan and Senija would come around 7 o'clock in the evening bringing food and the like.
In reaching my assessment of Antoni's credit, I have not overlooked his evidence to the effect that Ljubica had never told him that she had been married and that he did not see Radan at the Property until about ten years before Ljubica died. Antoni said this was not long after Stasko had been deported from Australia around 2006-2007 and that Ljubica introduced Radan to Antoni as "a friend". Given the length of time that has passed, I do not regard it as implausible that Antoni did not visit the Property, or at least does not remember visiting the Property, during the time that Ljubica and Radan were married, being more than twenty-five years ago.
Although he was called in the defendants' case, the way in which he gave his evidence under cross-examination did not, in my view, betray any partiality to either side of the dispute. I accept Antoni's evidence.

Paragraphs [19] - marital finances

Radan's affidavit evidence in his September Affidavit was: "10. Prior to our marriage, I had discussions with Ljubica in words to the following effect: Ljubica: "We can live together in my home. I still owe money on it to the Bank." I: "I will contribute from any money I earn to make these repayments and to help with all the home costs." Ljubica: "This will be your home from now on." 11. I recall that at the time we commenced relationship I was earning around $550.00 a week and Ljubica was earning about $320.00 to $330.00. 12. After we married on 30 April 1989 I gave all my earnings to my Wife. I trusted she will take good care of the household earnings. As a new arrival (I arrived in Australian from ex-Yugoslavia (Bosnia & Herzegovina) in 1988) I thought she was better suited to take control of all monies having regard to me barely knowing any English. Even though I have lived in Australia for more than two decades my command of English is still very limited."
I accept that a conversation of the kind deposed to in paragraph 10 of Radan's September Affidavit took place. It is inherently likely, being a conversation of a kind which the Court has no difficulty in accepting would have occurred between two people who were about to get married, and where one of them already owned their own home. I also accept the inherent likelihood of Radan's evidence that he gave his earnings to Ljubica for the reasons he gives.
The real issue becomes whether or not Radan has proven his and Ljubica's income, how much he gave Ljubica towards the discharge of the Mortgage and whether she applied it for that purpose and his other funds towards their living expenses. This question must be assessed against the background that it is evidence of circumstances nearly thirty years ago, that the only person who could give any evidence about this - Ljubica - is dead and there are no contemporaneous banking or pay records available.
Radan conceded in cross-examination that he did not know and could not prove how Ljubica applied the money which he gave her, beyond saying that their bills were apparently paid and that the Mortgage was discharged within four months of their marriage. At a superficial level, and accepting the earnings to which Radan deposes in paragraph 11 of his affidavit quoted above, if it be assumed that $12,000 remained on the mortgage then there was income sufficient to pay off $12,000 in that period. However, the Court has no evidence of what their expenses were at the time.
The only objective contemporary evidence (the transfer of the Property to Ljubica and the Mortgage) establishes that Ljubica bought the Property in November 1985 for $54,000, subject to the mortgage of $34,000 with monthly repayments of principal and interest of $397, and that the Mortgage was discharged (and therefore the Court can safely infer, repaid) by 11 August 1989. Significantly for present purposes, and ultimately fatally for Radan's case, no mortgage statement has been tendered showing the repayment history of the Mortgage.
The facts which have been proven do not enable Radan's evidence to be tested. This much can be demonstrated mathematically. In round terms, 29 November 1985 to 30 April 1989 is a period of 41 months. It is around April 1989 that Radan said Ljubica told him she still owed $12,000 on the Mortgage.
To keep the mathematics simple, if interest is ignored and it is assumed that Ljubica had been making the monthly repayment of $397, then the amount of the Mortgage would have been reduced by $16,277 (41 months x $397). On this analysis, the amount of the Mortgage would have been reduced to $17,723. Given that the repayments of the Mortgage were in fact for principal and interest, then it must follow that if Ljubica had paid only the $397 per month, the balance of the Mortgage as at the date of her marriage would have been even greater than the $17,723 (because some part of each repayment would have been repaying interest rather than principal).
It could, of course, be responded, that Ljubica may have been trying to repay the Mortgage faster from her own resources. The difficulty with this response is not its plausibility, but rather the fact that there is absolutely no evidence about the topic whatsoever. For example, Radan does not give any evidence to the effect that Ljubica told him that she had been trying to repay the Mortgage faster by making repayments of greater than $397 per month.
This example only serves to demonstrate that the Court only has Radan's word for the amounts involved. However, on examination, even the versions given in his affidavit are not consistent.
The first evidence is at paragraphs [14] to [15] of the September Affidavit: "14. I recall at the beginning of our relationship Ljubica said to me words to the following effect: "There is a loan on the house. The balance outstanding on the loan is about $12,000.00." 15. I had some of my own savings at the time and I said: "I have some savings you can use it towards discharge of the loan"…I believe it was $7,000.00 or $7,5000.00 that I gave to Ljubica to pay towards the mortgage. The rest of my savings (some $1,500.00 to $2,000.00) I gave to Ljubica to use to pay for some other household needs, rates, insurances, water and similar expense. I assume Ljubica used the money as I intended her to."
However, it will be seen that even in that first version, his recollection is inexact as to whether it was $7,000 or $7,500 that he gave to Ljubica to pay towards the Mortgage.
He repeats this evidence in slightly different terms in paragraph 19 of the September affidavit (which again repeats the $7,000 or $7,500 being applied to reduce the Mortgage): "19. We lived off her earnings at the time and my earnings were applied to pay off the home loan sooner. At least I have been told so by Ljubica in the conversation deposed to below: I trusted Ljubica. She also told me that my wages were used towards council rates, water rates and insurances. There was a conversation between us to the following effect: "Ljubica: Radan, there is a Mortgage on this house…balance of which is some $12,000.00. I: I have some savings…that can be applied towards the mortgage Ljubica: How much do you have? I: about $9,000.00…you can reduce the mortgage…the rest we can pay from our earnings Ljubica: Your pay is higher and we will use your pay to pay the mortgage quickly, and my pay will be used for our living expenses…what do you say? I: Sounds good to me. I then gave my savings to Ljubica who then went to the bank and paid $7,000.00 or $7,500.00 to reduce the loan. I remember, next day or so, Ljubica confirmed to me she paid my savings to reduce the mortgage: "Ljubica: Radan, I went to the bank and paid the money you gave me…we now owe some $5,000.00… I: Good, the rest of the balance you pay from my weekly payments…you can apply my entire pay,…until the mortgage is repaid we will live of [sic] your pay, only. Ljubica: This way we shall repay it soon."
I accept and find that Radan gave his wages to Ljubica. However, I am unable to reach a state of actual satisfaction as to Radan and Ljubica's income, the amount which Radan gave to Ljubica, and whether that was in fact applied to reduce the Mortgage, for the following reasons: 1. The view I have taken about Radan's reliability, in particular on this question, for the reasons set out in paragraphs [67] to [78] above. 2. The only person who can corroborate the amounts and course of conduct alleged by Radan is dead. In accordance with the authorities (see paragraph [66] above), this circumstance in and of itself requires some degree of circumspection on the part of the Court, all the more so in the absence of any contemporaneous, corroborating material. 3. Radan's concession, referred to in paragraph [89] above, that he does not know and cannot prove how Ljubica actually applied the money which he gave her. 4. The importance of the issue for the case. The amount which Radan contributed is essential not only for his case, but has important consequences for the rights of the beneficiaries under the 2015 Will. The Court must bear in mind that in her three wills made from 1995 until her death in 2015, Ljubica intended for her estate to pass to her relatives in the Serb Republic. Without departing from the proposition that their income and the amount of Radan's contribution must be proved on the balance of probabilities, these facts are serious ones of which the Court must be actually satisfied. 5. The absence of any specificity as to the amounts of his contribution (in particular to the Mortgage) in the caveat which he lodged over the Property (see paragraph [49] above). 6. The absence of any specificity as to the amounts of his contribution (in particular to the Mortgage) in the pre-action correspondence between solicitors which is in evidence prior to the agreement between the parties that the Property could be sold on terms that the proceeds should be held pending the outcome of the proceedings. 7. Even the particulars to the allegation in the statement of claim that Radan "commenced making repayments of the home loan over the Property" are expressed in approximate terms (emphasis added): "In the first part of 1989, a lump sum payment of approximately $7,000 and weekly payments of $400 up and until the mortgage was discharged in August, 1989." 1. Nothing in Radan's evidence supports the particular that there were "weekly payments of $400 up until the mortgage was discharged in August 1989", notwithstanding that Radan verified his belief that the allegations of fact in the statement of claim were true. In the circumstances, Radan can be the only source of the instructions for that particular, but evidence to support it is nowhere to be found in his affidavits or elsewhere in the material before the Court. Nor does the figure of $400 bear any apparent relationship to the $550 a week that he says he was earning at the time. 2. There is no evidence that at any time prior to Ljubica's death Radan told anyone about, or sought to assert, his alleged entitlement to the Property. For example, when I asked Senija whether Radan had ever spoken to her about his hopes or expectations in relation to the Property, she replied in the negative. This silence about any alleged entitlement to the Property over a period of nearly 30 years, especially in the last few months of Ljubica's life, is a fact which weighs against acceptance of Radan's evidence (although in and of itself not decisively, but rather as one of an accumulation of facts). 3. In addition to failing to assert his alleged entitlement at any time after his divorce from Ljubica, Radan gives no evidence that he sought to reconfirm Ljubica's intention at any time with her, notwithstanding what he says was their close relationship. 4. Furthermore, during the time which the Court accepts Radan spent in the last months of Ljubica's life providing her with care and support, there is no evidence from anyone (especially Senija) that Ljubica ever referred to any entitlement on the part of Radan to the Property. For example, while he deposes to Ljubica saying to Senija words to the effect of "My Radan is so sweet … he has been always looking after me …" and "Senija, all good I have had in my life is good time I spent with my Radan", there is no evidence that Ljubica ever suggested to anyone that Radan had an interest in or would be entitled to the Property on her death.
In reaching this conclusion, I have not overlooked the fact that the transfer which was tendered into evidence corroborates Radan's evidence that Ljubica purchased the Property for $54,000. However, insofar as that might be thought to be a basis to accept the rest of his evidence concerning the amount of his financial contributions, it is outweighed by the other matters to which I have referred in the preceding paragraph.

Paragraphs [25] - the Alleged Representation

Radan's case relied on these two paragraphs of his September Affidavit: "46. When we divorced in December 1992, Ljubica and I did not enter into any formal property settlement. Ljubica did say to me words to the effect at that time: "When I die, Radan you will inherit the home." 47. I trusted she would honour this promise. I relied upon what she said and assumed this would be so as she did not have children. Similarly, she stated on few occasion that I could stay with her in "our home" as long as I wanted."
I can readily accept that it is inherently likely that Ljubica may have said words to that effect to Radan during the course of their marriage. It is the sort of thing which a wife might say to her husband. However, if said in those circumstances, and without more, the Court would not interpret them as being intended to survive a divorce.
Radan's case was that the Alleged Representation was made at the end of the marriage and in circumstances where he relied upon them not to apply for a property settlement. For the following reasons the Court is not satisfied that those words were said or that, even if they were, Radan could reasonably have relied upon them not to apply for a property settlement. These are the reasons for that conclusion: 1. The view I have taken about Radan's reliability for the reasons set out in paragraphs [67] to [78] above. 2. The only person who can corroborate the Alleged Representation is dead. In accordance with the authorities (see paragraph [89] above), this circumstance in and of itself requires some degree of circumspection on the part of the Court, all the more so in the absence of any contemporaneous, corroborating material. 3. The importance of the issue for the case. Whether or not the Alleged Representation was made has important consequences for the rights of the beneficiaries under the 2015 Will. The Court must bear in mind that in her three wills made from 1995 until her death in 2015, Ljubica intended for her estate to pass to her relatives in the Serb Republic. In my view, without departing from the proposition that the making of the Alleged Representation must be proved on the balance of probabilities, the fact is a serious one of which the Court must be actually satisfied. 4. The absence of any reference to the Alleged Representation in the caveat which he lodged over the Property (see paragraph [49] above). 5. The absence of any reference to the Alleged Representation in the pre-action correspondence between solicitors which is in evidence prior to the agreement between the parties that the Property could be sold on terms that the proceeds should be held pending the outcome of the proceedings. For example, in a letter to the then solicitor for the defendants dated 1 June 2017, Radan's solicitor asserts: "In addition to already stated interests of our client, please be advised that our client claims an interests [sic] in whole of the land as a beneficiary owner of the said matrimonial property. Our client claims pursuant to an interest stemming from constructive trust and/or resulting trust, as well as pursuant to an express trust that emanated from the agreement the parties had at the time." It would have been a perfectly simple matter for Radan's solicitors to assert, if this had been their instructions, that Ljubica had made the Alleged Representation. 1. There is no evidence that at any time prior to Ljubica's death Radan told anyone about or sought to assert his alleged entitlement based on the Alleged Representation. For example, when I asked Senija whether Radan had ever spoken to her about his hopes or expectations in relation to the Property, she replied in the negative. This silence about the Alleged Representation over a period of nearly 23 years, especially in the last few months of Ljubica's life, is a fact which weighs against acceptance of Radan's evidence (although in and of itself not decisive, but rather as one of an accumulation of facts). 2. In addition to failing to assert his alleged entitlement at any time after his divorce from Ljubica, Radan gives no evidence that he sought at any time to reconfirm the Alleged Representation with Ljubica, notwithstanding what he says was their close relationship. 3. Furthermore, during the time which the Court accepts Radan spent in the last months of Ljubica's life providing her with care and support, there is no evidence from anyone (especially Senija) that Ljubica ever referred to the Alleged Representation. For example, while he deposes to Ljubica saying to Senija words to the effect of "My Radan is so sweet…he has been always looking after me…" and "Senija, all good I have had in my life is good time I spent with my Radan", there is no evidence that Ljubica ever suggested to anyone that she had promised the Property to Radan on her death. 4. Radan accepted in cross-examination (T59:45) that the only statement Ljubica made that mentioned the house was in December 1992 that "When I die, Radan you will inherit the home" and that she said nothing more and nothing less. Even on his own evidence there was no express representation that if they did not enter into a formal property settlement, he would inherit the Property. At its highest, this seems to have been an assumption on his part. There is no evidence that she understood him, or ought to have understood, that he had made that assumption and was acting in reliance upon it. 5. Mr Blank was unable to offer any plausible reason why Ljubica would have made the Alleged Representation at the end of the marriage, whether to avoid a property settlement or for any other reason. For example, this is not a case where it could be said that Ljubica needed to avert a property settlement so as not to have to sell the Property. She had been able to purchase and make repayments on the Property from her own resources in the years prior to the marriage. There is no reason to think that, if she had had to borrow funds against the Property for the purposes of a property settlement with Radan, she would not have been able to do so after the divorce. 6. In his exchange with me (see paragraph [78] above), Radan made no mention of the Alleged Representation. By the time of that exchange, Radan had been in the witness box for some time. He betrayed no signs of nervousness or distraction. Had the Alleged Representation been made to him and was something upon which he had relied, I would have expected that he would have referred to it in his answer to me. The fact that he did not is a matter which weighs heavily against accepting his evidence on this point. 7. Ljubica made no mention of Radan having any entitlement to the Property in not one, but three wills made over a period of 20 years.
There are two other observations which it is necessary to record in relation to the Court's inability to be actually satisfied that Ljubica made the Alleged Representation or that Radan acted in reliance on it.
First, the fact that there was no property settlement is, in and of itself, a neutral factor. It is explicable for many reasons, of which only one is the version advanced by Radan.
Second, I have not overlooked Radan's assertion of an "agreement" during his cross-examination (T39:26-50): "Q. Mrs Pacic never said to you "When I die, Radan, you will inherit the home." A. INTERPRETER: She did say. Q. You knew that you could apply for family law property settlement within 12 months of the divorce, correct? A. INTERPRETER: Yes, but we made an agreement, me and her. Q. There was no such agreement, was there? INTERPRETER: Can I repeat the question, your Honour? HIS HONOUR: You can have the question again. ELLISON Q. There was no such agreement, was there? A. INTERPRETER: What agreement? Q. You said, when I asked you that you didn't apply for property orders, you said, "We had an agreement." There was no such agreement, was there? A. INTERPRETER: Me and Ljubica we had an agreement between us, me and my wife. We had an agreement between us. Q. There was no such agreement, was there? A. INTERPRETER: It did exist between me and her."
I regard it as significant that not even at that moment of his cross-examination did Radan specify what the "agreement" was. For example, he did not say something to the effect of "Ljubica promised me that I would inherit the Property if I did not apply for a property settlement". As I have noted in paragraph [76] above, the clear impression I got from Radan's evidence, including the evidence which I have just quoted, was that he clearly assumed or believed that he had an agreement with Ljubica in relation to the Property, but nowhere in his evidence does he attribute any words to her which could provide a context for the Court to find that he was promised the Property in return for not seeking a property settlement.

Paragraphs [26] and [40] above - the closeness of the relationship

Much of the evidence of the various witnesses was directed to attempting to prove the closeness of the relationship between Radan and Ljubica. In summary, Radan's evidence was that from the day of the divorce (being an invitation to attend a New Year's Eve party at the Property) and thereafter, he maintained a close and cordial relationship with Ljubica, even after he had left the Property.
It is not necessary for the Court to make a finding as to how close and cordial that relationship was. There was considerable confusion in Radan's evidence by the use of "intimate" in his affidavit evidence and the questions that he was asked in cross-examination. Radan ultimately said that he did not know what "intimate" meant. I gained the impression that it was his evidence that up until the time he married Zorka, he and Ljubica still had sexual relations from time to time. It was less clear whether that was his evidence in relation to the period after Radan had separated from Zorka.
As I have observed in paragraphs [80] to [82] above, the evidence on the nature of the relationship between Radan and Ljubica was very partisan, with Radan and Senija on one side, and Irene and Mile on the other. Having carefully considered their evidence and observed them under cross-examination, I have come to the firm conclusion that each of them was exaggerating at least to some extent.
The overwhelming picture which I formed from the evidence and I am satisfied was the case, is that within the Serbian community Radan and Ljubica did continue a cordial relationship, seeing each other from time to time. At least at a social level, I am satisfied that also continued while Radan was married to Zorka. However, this conclusion must be understood in the light of the fact that the Court is also satisfied that while Radan was married to Zorka, Ljubica was in a relationship with Stasko for several years.
The conclusions I have expressed in the preceding paragraph are fortified by Antoni's evidence, which for reasons I have given in paragraphs [83] to [85] above I accept, that Ljubica "had many friends who came and visited her often". The conclusion is also based on an inference going backwards in time from when Ljubica became increasingly unwell and required greater assistance. Antoni's independent observation was that all of the protagonists visited and helped Ljubica during that period, albeit visiting at different parts of the day. This last matter offers at least some explanation as to why the two camps asserted with such vehemence that they barely saw each other at the Property. The Court is left in no doubt that, to the credit of all of them, as Ljubica's friends and fellow members of the Serbian community, they cared for her during her terminal illness. So much is clear from Antoni's evidence, especially in cross-examination.
There are two other matters I have taken into account on this question to reach the conclusion that Radan and Ljubica's relationship was a generally social one (rather than anything more), especially towards the end of her life.
First, Antoni gives evidence that when Radan visited Ljubica in the last months of her life, she would disrespect him and call him "budalla" ("stupid"). In fairness to Radan, Antoni went on to explain in cross-examination (and I accept) (T132:32-34) that "…in this community, it's happen this way all the time. We argue and we friend, next day we say sorry, it's all right".
Second, the fact that Ljubica never appointed Radan even as an executor under the three wills she made after their divorce belies Radan's evidence of a more than casually social relationship.

Radan's case in equity

It will be apparent from the Court's findings for the reasons set out in the preceding paragraphs that Radan's equitable claim fails for want of proof of essential facts. The Court is unable to be actually satisfied of the amount of his contributions to the Mortgage or more generally, or that, at the end of the marriage, Ljubica made the Alleged Representation. It follows that the Court is not satisfied that Radan did anything in reliance on the Alleged Representation. Nevertheless, it is appropriate that I set out how Radan's equitable claims were ultimately put.
The basis of Radan's claim in equity to either the whole of the Property, or to a lesser interest, was not obviously apparent from the statement of claim: "8 At various times during the Deceased's relationship with the plaintiff she made statements or representations that indicated that the Plaintiff had an interest in the Property and that he would inherit the Property upon her death. Particulars (a) At the commencement of the marriage; (b) In 1992; and (c) In 2011 9 After the parties married, the Plaintiff commenced making repayments of the home loan over the Property. Particulars In first part of 1989, a lump sum payment of approximately $7,000 and weekly payments of $400 up and until the mortgage was discharged in August, 1989 10 By August, 1989 the home loan repayments were finalised, such that the Property became unencumbered. 11 On or about 1992, the parties divorced in the Family Court. The parties did not enter into a property settlement. 12 At the time of the divorce proceedings, the Deceased expressed her wish that the Plaintiff would inherit the Property. Particulars (a) Conversation between the Deceased and the Plaintiff in 1992. 13 On the basis of: (a) The Plaintiff's contribution to the discharge of the home loan; and/or (b) The statements of intent made by the Deceased: (i) the Plaintiff has acquired an interest in the entirety of the Property; alternatively (ii) the Plaintiff [h]as acquired an interest commensurate with his contributions to the discharge of the mortgage. 14 The Property has been sold and the Plaintiff claims the proceed of sale be held in Trust for him, or so much of the proceeds of sale as represent his interest in those proceeds arising from contributions to the home loan, be held on trust for him."
In his opening, Mr Blank put the case as one in estoppel (T2:4-35): "BLANK: The case we put in equity is as follows. The parties were married in April 1989 and at that time the wife owned the property at Canley Heights. We will be tendering evidence of the dealings which will indicate to your Honour that in July 1985 the house was transferred from parties called the Harris' to Mr Herman(?) for $50,000, and then only some months later in November 1985 the house was transferred to the deceased for $54,000. The dealings will also record a mortgage that the deceased took of $34,000 to finance the house. Prior to the parties getting married they had a discussion where they decided they would live in the deceased's house, and at that time the mortgage was $12,000. Very soon in the marriage my client provided a lump sum of $7,000 to the mortgage, and then pursuant to discussions they had it was agreed that he would contribute the entirety of his wages to the mortgage. That had the effect of extinguishing the mortgage in about August 1989, so really quite soon they managed to be mortgage free. In 1992 the parties separated and at that point our case is the wife, now the deceased, represented to the husband that when she passed he would inherit the house. Against that representation my client did not take steps to seek a property settlement. He was taking on, if you like, the gamble of the tontine, because he would have to outlive her for that to come to fruition, but he was willing to do that because there was an age difference. So he took on that risk, if you like, and the result of that is that the wife then acquired an unencumbered property for the rest of her life which freed up money for herself, which gave her the capacity to earn rental income - and there's some evidence in the defendant's affidavit's about that - and it afforded her a lifestyle where she could make a living in the market without taking out a full nine to five job let's say. We say that it would be unconscionable for the deceased's estate to take that benefit without in any way accounting for the fact that my client has made a contribution and forgone his opportunity to take a family settlement when he could have, in essence an estoppel."
In closing submissions, Mr Blank submitted that he relied on the promissory estoppel (although he later said the estoppel encompassed both a proprietary estoppel and a promissory estoppel - what he described as "estoppel at large") and a case based on what he submitted were Radan's contributions to the improvement of the Property. He relied on Baumgartner v Baumgartner (1987) 164 CLR 137 ("Baumgartner"); [1987] HCA 59 and the decision of Young CJ in Eq (as his Honour then was) in Henderson v Miles (No 2) (2005) 12 BPR 98200; [2005] NSWSC 867 ("Henderson").
Insofar as proprietary estoppel is concerned, Radan has failed to satisfy the Court that his expectation or belief as to his entitlement to the Property can be attributed to anything said or done by Ljubica, or that Ljubica encouraged him not to seek a property settlement or knew that he had not done so because of what she had allegedly said. Similarly in relation to promissory estoppel, Radan has failed to satisfy the Court that Ljubica induced him to adopt the assumption or expectation that he would inherit the Property or that Ljubica knew or intended him not to seek a property settlement in the expectation that he would inherit the Property.
Had either basis for relief been made out, this would not have been a case where the Court would have come to the view that equity required Radan to receive the whole of the Property. In circumstances where, at its highest on his case, Radan had contributed $12,000 to a property purchased for $54,000, I accept Mr Ellison SC's submission that it would be disproportionate and inequitable to give Radan the benefit of the whole Property.
While Mr Blank's primary submission was that Radan should receive the whole of the sale proceeds, his alternative submissions presented detailed calculations representing the value of the notional family law property settlement which Radan had not sought. Those calculations will be retained with the papers. It is sufficient for me to note that, including interest, they yielded a result, in favour of Radan, of between $31,079 and $68,090. Mr Ellison SC's submissions disputing those calculations will also be retained with the papers.
Radan's case based on Baumgartner and Henderson does not depend upon estoppel. Rather it invokes equity's jurisdiction upon the breakdown of a joint enterprise (in this case the marriage) to prevent one party retaining an unconscionable windfall. In this case it is said that the unconscionable windfall was the amount contributed by Radan to the repayment of the Mortgage. Again, for reasons I have given above, Radan has failed to satisfy the Court on the balance of probabilities as to the amount of his funds that was actually applied for that purpose.
Furthermore, I have not overlooked Mr Blank's submissions that if the Court was not satisfied that Radan's funds were completely applied to the reduction of the Mortgage by $12,000, then the Court should find that Radan made at least a $6,000 contribution to the Mortgage by way of salary pooling and that his interest in the Property (now the proceeds of sale) should be adjusted accordingly. Again, the difficulty with this submission is that the Court is unable to be actually satisfied as to whether or not the amount of the Mortgage outstanding at the time when Radan and Ljubica got married was, in fact, $12,000 so as to be able to conclude that at least half that should be attributed to Radan. Similarly, the Court cannot be actually satisfied of the amount of Radan's contributions.

Radan's case under the Act - eligible person

There was no dispute that, as a former husband of Ljubica, Radan is an eligible person under s 57(1)(d) of the Act.

Radan's case under the Act - extension of time

Section 58(2) of the Act provides: "An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown."
Ljubica died on 24 July 2015 and these proceedings were commenced by summons filed 11 months out of time on 15 June 2011.
Radan's evidence as to why he delayed in bringing these proceedings was set out in his September Affidavit: "104. When Ljubica passed away I have been told by the second defendant that Ljubica left the Will, and that she did not leave the house to me in a conversation in words to the following effect. Mile: Ljubica left the Will…she did not leave anything to you …Irene and I are trustees and responsible for the estate and Ljubica's burial…we are taking care of everything…stay out of this… 105. Whilst this was a surprise to me as Ljubica made several promises to me that she will leave the property to me, I believed that there was nothing to be done. I did not seek nor did I obtain any legal advice vis-à-vis my rights, until recently when I met our priest. I had a conversation with him in words to the following effect: Priest: Why didn't you go to solicitor? I: Ljubica did not leave me a Will…I cannot change that… there is nothing I can do about it… Priest: Go and talk to solicitor…I am sure solicitor can help you… I: Which solicitor?... I knew the solicitor from my family law proceedings; however, I was not confident to seek advice from him. My other solicitor does personal injury matters. I did not know if he does estate matters. Priest: I know a solicitor who does contested estate matters… go and see him…I am sure he can help you… The priest referred me to my current solicitor. I then approach my Solicitor, Mr Tihomir Novakovic, Novakovic Lawyers, who provided me with legal advice. I then instructed my solicitor to lodge a Caveat on the matrimonial property and commence legal proceedings thereafter."
The defendants opposed the extension of time. Mr Ellison SC submitted that Radan's evidence did not demonstrate any good reason for his delay. He had known almost immediately upon Ljubica's death that she had made no provision for him in the 2015 Will. His September Affidavit made it clear that he knew solicitors who, even if they themselves did not practice in estate matters, could have referred him to someone who did. There was, it was submitted, simply no proper explanation as to why Radan had waited nearly two years after Ljubica's death to commence these proceedings.
Mr Ellison SC referred the Court to the statement of relevant principles by Hallen ASJ (as his Honour then was) in Gersbach v Blake [2011] NSWSC 368: "99. The decision of the court to extend time is a discretionary decision. The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. 100. Ultimately, what the applicant must establish is a sufficient explanation or excuse to justify the granting of an extension of time. The onus lies on her, or him, to establish sufficient cause and, thus, to provide the reason(s) for not commencing within time, to demonstrate a lack of prejudice due to the delay in instituting proceedings, and any unconscionable conduct by the defendant or other beneficiaries. It will be for the court to determine the strength of the applicant's claim. 101. In Cetojevic v Cetojevic [2006] NSWSC 431, Campbell J (as his Honour then was) explained that the prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim. 102. In De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported), Sheller JA held that the concept of "unconscionable conduct" referred to above was "directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security". Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct. 103. As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail. 104. Perhaps, relevant to the present case, is what was said in Mansfield & Ors v Mansfield & Anor [2003] WASC 214 at [65]: '65 The authorities also show, as in Young v Kestel, that in some circumstances a failure to make an application under the Act in the prescribed time may be explained and justified by a lack of information in the hands of an applicant. A lack of information may support the view that the applicant was not in a position to make a responsible decision about whether or not to institute proceedings under the Act.' "
This case presents as a borderline application for an extension of time. It might be thought that the length of delay, in practical terms 11 months from the last date on which the proceedings could have been brought without leave, was not that long. However, Radan's explanation for his delay is barely adequate. There has been no unconscionable conduct on either side. Also weighing heavily against his application is that, as will be apparent from what follows below, I consider Radan's claim to be a weak one. Had the defendants been able to demonstrate any real prejudice by reason of the delay, the Court would not have granted an extension of time.
The defendants had expressly pleaded by way of defence: "As a consequence of the delay by the Plaintiff in bringing these proceedings, the defendants have suffered prejudice in the conduct of the defence to the proceedings in that they have had no access to contemporaneous bank records and tax and wage records of the Plaintiff and the deceased such that the Defendants are prejudiced and the Plaintiff should thereby be denied the relief he seeks."
I am not satisfied that the defendants have been able to demonstrate any prejudice by reason of the 11-month delay, especially in relation to the loss of records, for the following reasons: 1. There is no evidence to suggest that documents which would have been available had the proceedings been brought in time were destroyed in the time since Ljubica's death. 2. Although there was no specific evidence to this effect, I am satisfied that it is not reasonably open to question and is generally common knowledge (see s 144 of the Evidence Act 1995 (NSW)) for the Court to take notice that document retention requirements mean that it would be highly unlikely that any financial or similar institutions would have retained loan, tax or other records going back nearly 30 years. 3. Furthermore, while there was evidence that Irene and Mile had cleaned out the Property, Irene's evidence was clear that she had retained what she had referred to as Ljubica's "private papers" (T110:26-28): "That's what she put in that box, her passport, her citizenship, her bank account, all the things we needed as an executor, to help me solve all her problems." However, her evidence was that the bank account records did not go back beyond 2006 or 2007. In answer to a question in re-examination from Mr Ellison SC, she confirmed that she did not find any bank or tax records from more than 20 years ago.
No prejudice other than the potential loss of contemporaneous records was seriously advanced by Irene and Mile. I am not satisfied that the 11-month delay in commencing the proceedings means that any documents that would otherwise have been available have become unavailable. As I have noted, the proceedings were fought without any contemporaneous records other than those that were available by searching the title to the Property. Unfortunately for Radan, the absence of contemporaneous records has, in the result, ultimately worked against his interests.
The Court will make an order under s 58(2) extending the time for the commencement of these proceedings to the date upon which they were in fact commenced.

Radan's case under the Act - factors warranting

Radan is an eligible person under the Act solely by reason of the fact that he is Ljubica's former husband (s 57(1)(d)). As such, as a prerequisite to the exercise of its discretion to make a family provision order, s 59(1)(b) requires that the Court be satisfied that "having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application".
Mr Blank submitted that the factors warranting Radan's application were: 1. the nature of the parties' relationship after their separation; 2. the fact that they rekindled their relationship almost immediately after their divorce and sustained a friendship during Radan's marriage to Zorka; 3. the fact that upon the dissolution of his marriage with Zorka in 2011, Ljubica opened her home to Radan; 4. the care and support which Radan provided to Ljubica during her illness; 5. the fact that there had been no property settlement such that his financial (and non-financial) contributions have at no time been taken into account, especially in circumstances where his contributions enhanced the value of the estate; 6. the fact that the competing beneficiaries themselves do not present as the natural objects of Ljubica's testamentary bounty, not least because the nature of their relationships are tenuous.
The parties agreed that the leading authority on the question of "factors warranting" is the decision of the Court of Appeal in Lodin v Lodin [2017] NSWCA 327. The relevant statements of principle are to be found in the judgment of Sackville AJA (with whom Basten and White JJA agreed) (citations omitted): "114. Consistently with the analysis in Re Fulop, the starting point for applying of s 59(1)(b) of the Succession Act is that an eligible person such as a former spouse or grandchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased.[58] In order to satisfy s 59(1)(b) an applicant must therefore establish that there are circumstances that justify regarding him or her as a natural object of testamentary recognition by the deceased. Those circumstances must go beyond the bare fact of a familial (or, in the case of a former spouse, a previous familial) relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant. … 119. As McLelland J pointed out in Re Fulop, a finding that a claimant has shown that there are factors warranting the application, thus satisfying s 59(1)(b) of the Succession Act, does not necessarily mean that the claimant's application for a family provision order must succeed. Even though the claimant can be regarded as a natural object of the deceased's testamentary recognition, there may be many reasons why the application fails. For example, the estate may be relatively small and there may be other eligible persons whose needs are greater than the claimant's or whose relationship with the deceased was closer and more mutually supportive. In deciding whether to make a family provision order the Court, depending on the circumstances, may take into account matters specified in s 60(2) of the Succession Act that have little or no bearing on the question posed by s 59(1)(b). Claim by a former spouse 120. The question arises as to the approach that should be taken in deciding whether the former spouse of a deceased person satisfies s 59(1)(b) of the Succession Act by establishing that there are factors warranting the making of the application. The issue was given close attention in Dijkhuijs, which involved an application under the FP Act for family provision by the former wife of a deceased testator. Dijkhuijs 121. The following propositions can be derived from Dijkhuijs (bearing in mind that it was decided under the FP Act): (i) The legislative history cannot determine the meaning of the legislation. The broad language used by Parliament to achieve novel reforms must be given its "full effect". Thus although the second reading speech referred specifically to the case of a divorced wife whose former husband died before any property settlement could be finalised, the legislation cannot be confined to such cases. (ii) The former spouse need not demonstrate that there are "special factors" which warrant making the application. The legislation requires only that in all the circumstances of the case there are factors warranting the making of the application. (iii) While in most cases a final property settlement in the Family Court will be seen as terminating any moral claim of a former spouse to provision from the estate of the deceased, that policy must accommodate itself to the reforming provisions of the legislation. These expressly contemplate that a former spouse may be entitled to make a claim for family provision. Thus the public policy in favour of the finality of property settlements has to compete "in all the circumstances of the case" with the claims of the former spouse. Paramountcy should not always be given to the policy of a "clean break" over other factors having regard to the statutory instruction to take account of all the circumstances. (iv) The facts of each relationship are unique and the circumstances which may give rise to a family provision claim will vary from case to case. There are dangers in attempting to limit the cases which may warrant the making of an application to "preconceived classes or categories". (v) One factor which is obviously relevant and which may in a particular case warrant the making of the application is the past relationship of the parties. 122. Four observations should be made about Dijkhuijs. First, Kirby P emphasised that s 33(2) of the FP Act (limiting the former spouses' entitlement to costs out of the estate if the application failed) constituted "an obstacle likely to inhibit the bringing of meritless claims".[71] As has been seen, the Succession Act contains no equivalent to s 33(2) of the FP Act, although it is not likely that a person bringing a meritless claim would be awarded costs out of the estate. Given the similarity in language between s 9(1) of the FP Act and s 59(1)(b) of the Succession Act, the absence of an equivalent costs provision in the Succession Act does not provide a sound basis for departing from the approach endorsed by Dijkhuijs. 123. Secondly, Dijkhuijs held that a number of limitations that the trial Judge had read into s 9(1) of the FP Act were not supported by the statutory language. However, the judgments do not suggest that a former wife will satisfy s 59(1)(b) of the Succession Act as a matter of course or simply by relying on the fact of the previous relationship with the deceased. Nor do the judgments suggest that the fact that the former spouse has unmet financial needs at the date of the deceased's death or the hearing is a basis, of itself, for finding that there are factors warranting the making of a family provision application. 124. Thirdly, the facts of Dijkhuijs were different from those of the present case. The claimant had been married to the deceased for 24 years and there were three children of the marriage. The deceased died less than two years after the Family Court made an order for the division of the property. During that period the deceased received a superannuation payment very much greater than the value attributed to his entitlement in the Family Court proceedings. This "windfall" (as it was described) came about because the deceased benefited from a very large increase in his salary very shortly after the Family Court proceedings were concluded. Because of the multiplier used to calculate entitlements to superannuation, the deceased's payout turned out to be much larger than had been assumed in the proceedings. 125. Fourthly, the Court in Dijkhuijs did not decide that the former wife (the applicant in the case) had established that there were factors warranting the making of the application. Because the Court held that the trial Judge erred in his approach to that question, the proceedings were remitted for rehearing. The files of the Supreme Court proceedings do not reveal the outcome of the former wife's claim beyond recording that the proceedings were stood over generally with liberty to apply. Some propositions 126. It follows from Dijkhuijs that care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting a former spouse of the deceased making an application for family provision from the estate. Nonetheless it is difficult to see how a former spouse could satisfy s 59(1)(b) of the Succession Act simply by relying on the existence of the marriage and the fact that he or she now has unmet financial needs. The reason is that these factors alone do not demonstrate that the deceased had a social, domestic or moral obligation to make testamentary provision for the former spouse. The position is unlikely to be different even if the estate is relatively large. Something more is ordinarily needed for the claimant to show that he or she was a natural object of testamentary recognition. 127. What more a claimant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward. An example commonly given is where the claimant and the deceased, although divorced, had not reached a financial settlement prior to the deceased's death. Other cases, such as Dijkhuijs, may involve a considerably more difficult evaluative judgment. 128. One matter of significance is whether the claimant and deceased finalised their financial relationship at the time of the divorce or subsequently, whether by agreement or by means of court orders (as occurred in the present case after contested hearings). As Dijkhuijs shows, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse. 129. Another significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant. In this respect considerable care needs to be taken to prevent a family provision claim becoming a forum for litigating questions of matrimonial fault long since removed from family law. Nonetheless the conduct of the deceased may be relevant to the question posed by s 59(1)(b) of the Succession Act if, for example, physical or sexual abuse during the marriage (or later) has caused the claimant to suffer a physical or psychological disability impairing his or her capacity to earn an adequate income."
Applying Lodin, the question becomes whether any of the matters raised by Mr Blank (see paragraph [136] above) "are circumstances that justify regarding [Radan] as a natural object of testamentary recognition by Ljubica. Those circumstances must go beyond the bare fact of …a previous familial… relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on [Ljubica] to make some provision for [Radan]" (Lodin at [114]). That assessment must be made, in accordance with s 59(1)(b), "having regard to all the circumstances of the case (whether past or present)".
Three of the matters relied on by Mr Blank may be combined into the factor of the nature of the relationship between Ljubica and Radan after their divorce in December 1992. The Court's findings about that are set out in paragraphs [26], [32] and [40] above. In short, the Court is satisfied that they remained on friendly social terms and that, at least prior to Radan's marriage to Zorka, they may have enjoyed sexual relations from time to time. However, there is no suggestion that at any time during that period they were in a close personal relationship, or in a de facto relationship (other than a faint reference in Radan's caveat (see paragraph [49] above that was not relied upon at trial), or that Radan was in any way financially dependent on Ljubica.
I am not satisfied that the type of friendship which has been proven would, in and of itself, justify Radan being considered as a natural object of Ljubica's testamentary recognition or demonstrating any social, domestic or moral obligation on her part to provide for him. This is particularly the case when the Court takes into account that for thirteen of the twenty-two years of Ljubica's life after her divorce from Radan, Radan was married to Zorka and had two children with her. Furthermore, for several years until around 2006, Ljubica was herself in a relationship with another man.
The next matter relied upon by Mr Blank was the care and assistance provided by Radan to Ljubica during her illness. The Court's finding in relation to that are set out in paragraphs [40] above. What Radan did undoubtedly reflects well on him. The same can be said for the other witnesses who, as the Court has found, all provided Ljubica with assistance. However, I am not satisfied that what Radan did was sufficient to make him a natural object of Ljubica's testamentary bounty "having regard to all the circumstances of the case". There are three reasons for this conclusion: 1. Radan was one of a group of community members who assisted Ljubica. He was far from having assumed the sole burden. 2. Antoni was Ljubica's primary carer in the last three months of her life. 3. While she had no blood relatives in Australia, Ljubica did have family in the Serb Republic, at the time of her death being the children of her deceased brother. She had visited that family (as it was then) during her six-month absence from Australia in the second half of 1990. Her nieces and nephew clearly live in poor circumstances (see paragraphs [61] to [64] above) and retained some level of contact with Ljubica by telephone (a finding which I nevertheless make after allowing some discount for the fact that they were not available for cross-examination). While Ljubica may have remained on friendly terms with Radan after their divorce, he was no longer part of her family and, by the time of her death, had not been such for twenty-two years. In those circumstances, the Court is satisfied that the beneficiaries would prevail over Radan as natural objects of Ljubica's testamentary bounty.
The next matter relied upon by Mr Blank was the fact that there was no property settlement between Radan and Ljubica so that his financial and non-financial contributions have at no time been taken into account. I accept that in some cases the absence of a property settlement would be a sufficient factor warranting an application by an ex-spouse. However for the following four reasons I do not consider it to be such in this case: 1. The significance of the absence of a property settlement will generally diminish with the passage of time. Putting it another way, intervening financial and personal circumstances can reduce the significance of any alleged injustice occasioned by the absence of such a settlement. In this case, thirteen years of marriage to Zorka and two children with her have intervened in the life of Radan. 2. Closely related to the preceding point, Radan has not (and could not) suggest that his current financial circumstances are in any way the consequence of, or have been affected by, whatever he contributed his marriage to Ljubica or his having failed to obtain a property settlement. If anything, Radan's current circumstances are the product of his having invested the $265,000 workers compensation claim (received after his divorce from Ljubica - see paragraph [33] above) in his matrimonial home with Zorka, the working out of his property settlement with Zorka and his receipt of $157,000 in respect of the car accident that he had suffered in 2013. 3. Radan has failed to persuade the Court that it can be satisfied as to the quantum of his contribution during his marriage to Ljubica. 4. Radan has failed to satisfy the Court of an explanation as to why he did not seek a property settlement. Especially where, as here, a considerable period of time has intervened between the divorce and the time of the application under the Act, an explanation as to why no application was made could be an important factor in the Court's consideration. With the passage of time and absence of an explanation, as I have said in paragraph [104] above, in this case the absence of a property settlement becomes a neutral factor.
It is convenient to record at this point that Mr Blank did not place any reliance on Ljubica's alleged behaviour during the marriage as creating any duty in Ljubica towards Radan. Even if such behaviour had been established (see paragraph [75] above) Radan could hardly be heard to rely on that behaviour when his evidence was that the divorce was a "mistake" and that he had begged Ljubica to marry him again.
The final matter relied on by Mr Blank was that the competing beneficiaries did not present as the natural objects of Ljubica's testamentary bounty. For the reasons set out in paragraph [141(3)] above, I disagree.
It follows that the Court is not satisfied that there are factors warranting Radan's application under the Act. Therefore no family provision order will be made.

Radan's case under the Act - generally

In case I am in error on the question of factors warranting, I will, for completeness, briefly set out my views as to the merits of Radan's application for a family provision order.
The same considerations inform my conclusions that: 1. The nil provision for Radan in the 2015 Will does not warrant the conclusion that adequate provision has not been made for Radan by the 2015 Will (the "jurisdictional question"); and 2. Even if that jurisdictional question had been satisfied, I would not have ordered any additional provision for Radan.
Radan does not suggest that his expenditure exceeds his income, modest though it may be. He is able to provide for himself from his disability support pension, including paying rent. He has the benefit of $265,000 in cash available for him to meet unexpected expenses (including of a medical nature) and by way of a buffer for contingencies. While that amount could also be applied for a nursing home bond, there is no evidence before the Court upon which I could conclude how much of such a bond could be met from his cash reserves.
Turning to the position of the beneficiaries, they are certainly no better off financially than Radan. They have no assets to their name and appear to live a relatively hand-to-mouth existence. In one respect Radan appears to be better off than the beneficiaries because none of them has a cash reserve of the amount that Radan has in his bank account. I do accept and take into account that, unlike most of the beneficiaries, Radan has serious health issues, but there is nothing to suggest that Radan will not be adequately cared for by the public health system.
In my view the decisive matters requiring the jurisdictional question to be answered in the negative or, alternatively, on the basis of which the Court would not order further provision, are: 1. The matters set out in paragraphs [141], [148] and [149] above; and 2. The clear testamentary intention expressed by Ljubica in three wills over twenty years, including the 2015 Will, that she wished her blood relatives to be her beneficiaries. That consistent testamentary intention should, in the circumstances of this case, be respected: Sgro v Thompson [2017] NSWCA 326.

Some observations on taking affidavits from culturally and linguistically diverse witnesses

Finally, it is necessary that I make two points about the way in which Radan's affidavit evidence was prepared. Those affidavits were written in English. Radan and Senija speak very little English and cannot read English. Radan's solicitor speaks Serbian and English. He took instructions from Radan and Senija in Serbian. He then translated those instructions himself into English and prepared their affidavits in English. He then read the affidavit back to the relevant witness in English and translated it back to them in Serbian to obtain their assent to its contents.
In making these observations, I am not suggesting that Radan's solicitor acted unethically. I assume that he did not retain a qualified, independent interpreter because he was trying to save costs by taking advantage of the fact that he spoke Serbian. Nevertheless, what was done is not a practice which is likely to maximise the prospects of justice being done and should be avoided when the witness is a culturally or linguistically diverse (CALD) person unless there is no practical alternative (for example, due to lack of communication facilities in a remote region, or urgency). It is noteworthy that during the course of their oral evidence, both Radan and Senija (giving their evidence through a NAATI accredited interpreter) said at various times words to the effect that that they did not understand or recognise "their words" in their respective affidavits.
The two points are: 1. Where affidavit evidence is given in English of a conversation that was in fact conducted in a language other than English, then the witness should identify the language in which the conversation occurred. 2. When preparing the affidavit evidence of a CALD witness, bilingual solicitors should not interpret their clients' affidavits into English. A qualified interpreter should be retained to interpret the deponent's instructions into English. When the deponent is asked to swear or affirm her or his affidavit, an interpreter should translate the English version back to the deponent and the procedure set out in paragraph [163] below should be followed.
I will briefly elucidate these points.
The first point is obvious. An affidavit in English giving an account of a conversation will at least implicitly represent that the conversation was in English. If in fact the conversation was in another language, then the affidavit is misleading (even if unintentionally so). Furthermore, particularly in cases where the conversation is alleged to have legal consequences, it is usually very important to know if it was not in English, so that possible issues such as tone, nuance and other linguistic idiosyncrasies can be taken into account. In some cases such matters have proven to be of critical importance.
As to the second point, there are at least two reasons why a bilingual solicitor should not interpret the deponent's evidence to produce an affidavit in English.
First, "research demonstrates the superior performance of trained interpreters over untrained bilinguals": Judicial Council on Cultural Diversity, "Recommended National Standards for Working with Interpreters in Courts and Tribunals" (2017, http://jccd.org.au/wp-content/uploads/2018/02/JCCD-Interpreter-Standards.pdf) at p 41 (the "Standards").
Being bilingual is not the same thing as being an interpreter (spoken words) or translator (documents). Interpreting and translating are highly skilled occupations, often now undertaken with the benefit of specialist tertiary study. Furthermore, reputable interpreters adhere to a professional code of ethics which emphasises the importance of professional competence, accuracy and independence.
Second, assuming the role of interpreter or translator could put the solicitor in an invidious professional position. This is also why even a solicitor who is also a professional interpreter - if there are any - should not do so in her or his own cases. Difficulties may arise if the accuracy of the interpretation is questioned, raising the possibility of the solicitor having to give evidence. Allegations of unconscious or even conscious bias could be raised.
Each of Radan's and Senija's affidavits in this case was prepared and witnessed by Radan's solicitor, and concluded with this statement: "This affidavit has been read out to the deponent in English and translated into Serbian by the witness who speaks both Serbian and English. The deponent appeared to understand the content of the affidavit and subscribed the affidavit by signature in the presence of the witness."
I infer that this was done by reference to the suggestion in Hamilton, Lindsay, Morahan and Webster (eds), New South Wales Civil Procedure Handbook 2018 (Thompson Reuters, 8th ed, 2018) at p 835 referring to UCPR Part 35 r 35.7 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"): "35.7 Affidavits by persons who cannot read An affidavit by a blind or illiterate person may not be used unless: (a) the affidavit bears a certificate referred to in section 27A of the Oaths Act 1900, or (b) the court is otherwise satisfied: (i) that the affidavit was read to the deponent in the presence of the person before whom it was made; and (ii) that it appeared to that person that the deponent understood the affidavit. … [r 35.7.40] Operation The CPA amended the Oaths Act 1900 to insert s 27A, which is in the following terms: If it appears to the person before whom an affidavit is made (the authorised person) that the person making the affidavit (the deponent) is blind or illiterate, the authorised person must certify, in or below the jurat: (a) that the affidavit was read to the deponent in the presence of the authorised person, and (b) that it appeared to the authorised person that the deponent understood the affidavit, and (c) that the deponent subscribed the affidavit (by signature or mark) in the presence of the authorised person. Although there is no specific rule that applies if the deponent is literate but unable to understand or express themselves in English, a certificate to similar effect could be included on the affidavit provided the person taking the affidavit is fluent in the language of the deponent. The certificate should state that the affidavit has been read to the deponent in a stated language understood by her or him, and that he or she appeared to understand it. If the affidavit has to be read to the deponent by an interpreter, it is appropriate for that interpreter to swear an affidavit setting out what occurred and indicating what was stated by the deponent to indicate her or his understanding and acknowledgement of the affidavit."
The note to the same rule in Ritchie's Uniform Civil Procedure NSW (Looseleaf, Lexis Nexis Butterworths) at [35.7.5] is to slightly different effect and also refers to the use of an interpreter: "[35.7.5] Deponent unable to read: If the proposed deponent is unable to read either because of physical, linguistic or literacy difficulties, the affidavit must be sworn in circumstances that establish the deponent's understanding and acceptance of responsibility for the accuracy, of the contents of the affidavit. The affidavit should be read to the deponent, if necessary by an appropriate interpreter, before it is sworn. The person taking the affidavit must certify on the affidavit that the contents were read aloud, that the proposed deponent apparently understood them, and duly subscribed the affidavit: s 27A Oaths Act 1900."
The best practice which should now be followed is set out in the Standards, which have been approved by the Council of Chief Justices of Australia and New Zealand. The Standards, with which practitioners should become familiar, contain model rules. Pending the incorporation of those rules into the UCPR, problems of the kind I have identified will be avoided if affidavits of CALD witnesses are prepared using a qualified interpreter and in accordance with model rule 1.16: "1.16 Where the witness is giving evidence by an affidavit or statement then, unless the Court otherwise orders: 1) the party wishing to read that affidavit or statement is not entitled to rely on that affidavit or statement unless it includes certification by the interpreter, or the interpreter separately verifies by affidavit, to the effect that: a. prior to sight translating the affidavit or statement to the witness, the interpreter: (i) had read the code of conduct and agreed to be bound by it; and (ii) had been given an adequate opportunity to prepare to sight translate the affidavit or statement; b. the interpreter sight translated the entire affidavit or statement to the witness, who then: (i) informed the person responsible for the preparation of the affidavit or statement through the interpreter that they had understood the interpreter and agreed with the entire contents of the affidavit or statement; and (ii) then swore or affirmed the affidavit or signed the statement in the presence of the interpreter; 2) The interpreter referred to in rule 1.16(1) may, but is not required to, be the interpreter who interprets for that witness in any hearing in the proceedings."

Conclusion

The statement of claim will be dismissed. The Court will give the parties an opportunity to address on costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2018

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