Stojanovski v Stojanovski

Judgment 1The Plaintiff, Steven Stojanovski, applies in the Court's Duty List to extend two caveats. In the alternative he seeks an injunction restraining the defendant, Angelina Stojanovski, from dealing with two parcels of land. The defendant opposes the extension of the caveat and the grant of an injunction. 2The present application is only part of a matter which already has a complicated procedural history. Only a small amount of that history needs to be recounted in order to decide the present application. Almost all of the parties to these proceedings are members of the one family. Without any disrespect to any family member, these reasons will therefore use their first names.

The Stojanovski Family - two sons and four properties 3The defendant, Angelina, is the sister-in-law of the plaintiff, Steven. Angelina is married to Steven's brother Robert. Both Steven and Robert are children of the late Nada Stojanovski, who died on 20 January 2006, leaving a will dated 3 January 2006. Nada's will has regrettably generated much litigation. Nada appointed her brother in law, Mr Jordan Stojanovski, as her executor and trustee and divided her substantial real estate between her two sons. Nada gave her eldest son, Steven, her interests in a property in George Street, Mortdale (the George property) and another in Jersey Avenue, Mortdale (the Jersey property). She gave to her younger son, Robert, her interest in a property in Breakwell Street, Mortdale (the Breakwell property) and another property in Kemp Street, Mortdale (the Kemp property). The will anticipated that there might be marital difficulties between Robert and his wife Angelina and between Steven and his wife Jovanka. That has turned out to be prescient. 4Nada's will records an understanding between Robert and Steven which became the source of the subsequent litigation. The gift to Steven of the George property was straightforward. The deceased owned the whole of the George property and it appears to have been administered by Jordan and transferred to Steven. 5But the will also provided for a gift to Steven of the whole of the Jersey property, which gift was contingent upon Robert's cooperation. The Jersey property was owned by Robert, Steven and Nada as joint tenants at Nada death. When she gave the Breakwell and Kemp properties to Robert, she observed in her will that Robert would transfer his share in the Jersey property to Steven, so that the result of her death will be that Steven would inherit the whole of that property by survivorship. 6Nada's will contains quite strong internal evidence pointing to an agreement made between herself, Robert and Steven, just before she made her will. When dealing with the subject matter of the gift to her eldest son Steven, Nada says in her will of the Jersey property:- "[this property is currently under three (3) names, naming myself Nada Stojanovski, my son Robert Stojanovski and my other son Steven Stojanovski]. In line with my son Robert Stojanovski is to transfer his share in this property to his brother Steven Stojanovski." In an affidavit filed in the related proceedings before Pembroke J (Exhibit 1 - paragraph 52), Robert explains that the intention that emerged from a family conference between Nada, Robert and Steven before Nada's death was that "I (Steven) would have Jersey Avenue, being a property that I could subdivide and that I would also receive George St". As will be seen, findings in related proceedings generally support this perspective on past events. 7Robert received the whole of the Breakwell property which was wholly owned by Nada at her death and took the Kemp property, which he held as a joint tenant with Nada, by survivorship at her death. 8During the deceased's lifetime she had also apparently transferred to Robert another property in Morts Road, Mortdale (the Morts property) which I was told by the parties has a net equity of approximately $500,000. 9Nada had also provided for Steven during her lifetime by transferring to him with a property in Milsop Place, Mortdale (the Milsop property). 10Thus the scheme of Nada's quite generous testamentary planning for her two sons, according to Steven at least, was that both he and Robert would have a house to live in and two rental properties from which they could earn income. Steven the elder brother would have the Milsop property to live in, and the Jersey and George properties to rent out. Robert would have the Breakwell property, as the house that would Robert apparently planned to live in and in addition would have the Kent and Morts properties from which he could earn rental income. There were other assets in the estate, money in the bank and superannuation which were all divided equally. Steven's evidence was "my mother did not play favourites between Robert and I. She treated us as both equally". An observation which is well supported by the structure of Nada's will. 11After Nada's death and during the administration of her estate, Robert declined to proceed with the transfer of his share of the Jersey property to Steven, which led to disputes and then litigation between them. Steven's position in these disputes was that Robert was only entitled to his respective interests in the Breakwell and Kemp properties, if he was prepared to go ahead with the transfer of the Jersey property to Steven. He paints a picture of interdependent promises, before Nada's death, in which Robert agreed to give up his one third interest in the Jersey property in exchange for receiving the Breakwell and Kemp properties. These disputes remained unresolved from Nada's death in 2006 to 2009. 12On 30 June 2009, after negotiations and upon legal advice, Steven, Robert and the executor, Jordan, signed a deed of release attempting to resolve these disputes. That June 2009 deed of release, unfortunately itself became the source of litigation before Pembroke J. It provided that Robert would transfer his interest in the Jersey property to Steven on certain conditions. These conditions included that Steven should withdraw certain 2007 proceedings he had brought under the Family Provision Act 1982 against the estate and that the parties would provide mutual releases. 13But the June 2009 Deed of Release was subject to another condition (cl. 3.19) that Steven would use his best endeavours to procure a removal of a caveat over the Jersey property, one which had been filed on behalf of his estranged wife, Jovanka. The Deed of Release provided that it would be of no force and effect if he was not able to procure the caveat's removal. In the result he was not able to persuade Jovanka to remove the caveat. He nevertheless sought relief by way of specific performance of the June 2009 Deed of Release before Pembroke J. In the alternative he sought an order that he be granted leave to withdraw his discontinuance of his 2007 Family Provision Act proceedings or be able to commence similar Family Provision Act proceedings out of time. 14In proceedings to enforce the Deed of Release Pembroke J found, on 16 November 2012, that it was void by reason of non-compliance with clause 3.19 and that it therefore could not be specifically performed: Stojanovski v Stojanovski [2012] NSWSC 1338. I understand from what is put to me in these separate caveat proceedings that Pembroke J has now given directions to permit Steven to apply to bring Family Provision Act proceedings out of time. Those proceedings before Pembroke J (proceedings 2012/89349) have now been restructured in that way. 15Pembroke J made findings confirming that Robert agreed in writing to transfer his joint interest in the Jersey property to Steven: Stojanovski v Stojanovski [2012] NSWSC 1338 at [2]. In that passage his Honour found as follows:- "On the same day that [Nada's] will was signed, the first defendant [Robert] signed a document declaring that he gave his share of the Jersey Avenue to the plaintiff [Steven], 'in line with my mother's last will'. However after his mother's death he resiled from that declaration. The plaintiff was therefore compelled to commence proceedings under Family Provision Act 1982 in an endeavour to obtain whatever his mother intended." 16Steven's application to bring fresh Family Provision Act proceedings out of time (Family Provision Act s 16) is in my view at least arguable, given that his 2007 Family Provision Act proceedings were only to perform the 2009 Deed of Release, which was declared void in 2012. Mr Bevan of Counsel for Steven has tendered the affidavits and other evidence that would be adduced in support of the Family Provision Act claim were an extension of time to be granted. It is not necessary for the purposes of these reasons to analyse that material, other than to express the Court's conclusion that it sets out at least an arguable case for an order for provision under Family Provision Act s 7 in the circumstances that have occurred. 17Nada's estate was fully administered by 2009. The executor, Jordan, transferred the Breakwell and Kemp properties into Robert's name that year. And the other estate property has been distributed to Steven and Robert. 18But after Pembroke J's November 2012 decision, and on 31 May 2013, Robert and Angelina executed a settlement under the Family Law Act resolving certain alleged property disputes between them. I am told that Angelina and Robert had been separated since March 2012 thereby attracting the jurisdiction of the Family Court for the making of such orders. Not much is known about this Robert-Angelina settlement, but some aspects of it may be inferred from external records. The Certificates of Title for each of the Breakwell, Kemp and Morts properties shows they were transferred "for no consideration" to Angelina on 31 May 2013. But the full terms of the 31 May 2013 settlement between Robert and Angelina have not been revealed by either Robert or Angelina. 19The May 2013 Angelina - Robert settlement has led to something of a stand off. Steven's lawyers only very recently discovered that the Breakwell, Morts and Kemp properties have now been transferred, without consideration to Angelina. I am told the total net value of these properties is of the order of at least $2,000,000, although Angelina seems to dispute that they are this valuable. 20As Nada's estate has long been fully administered, Steven's new Family Provision Act claim would require the Breakwell and Kemp properties to be designated as notional estate to satisfy any order for provision, as there is nothing else left in the estate: Family Provision Act s 24. But whether or not these properties were successfully to be designated as notional estate in future proceedings would be a matter for argument, in light of the statutory relevant considerations: Family Provision Act s 28. But the claim seems to me, on the material before this Court on this application, to be at least arguable. 21Steven wants to pursue his Family Provision Act proceedings. He accepts that in order to have the Breakwell and Kemp properties designated as notional estate he needs to know on what terms Angelina has received them. But the terms of the May 2013 settlement deed are private between Robert and Angelina and the Family Court has not yet permitted Steven to see them. But I am told that an appeal will be brought against the current Family Court of Australia decision preventing his access. In the meantime progress in Steven's Family Provision Act claim is stalled. 22The foundation of Steven's present application to extend the caveats over the Breakwell and Kemp properties is his fear that Angelina will herself deal with the Breakwell and Kemp properties before he is able to have them designated as notional estate. Steven's submission is that if Angelina deals with these properties by selling them to bona fide purchasers for value without notice of his claim, those persons would be likely to have a good answer to Steven's claim to designate the properties as notional estate. Steven therefore has filed the two caveats numbered AH977899N and AH9778908Q on the Breakwell and Kemp properties. Angelina has served a lapsing notice on Steven the caveator, which would have expired at midnight on 3 October 2013. But it was extended in circumstances which will be briefly explained below. 23On 30 September 2013 in the Duty List Steven sought to leave to abridge the time for service of summons seeking to extend the operation of these two caveats. The summons was served on Angelina and made returnable before the Court on 2 October when argument took place. 24Angelina was not legally represented. Mr Bevan of counsel represented Steven. Angelina applied for an adjournment of the proceedings. But as she was not prepared to give an undertaking either not to deal with the properties or to agree to extension of the caveat beyond midnight on 3 October, the Court only gave her two limited adjournments. After the proceedings were argued on 2 October between approximately 10.00am and 11.30am Angelina was given an adjournment until 3pm either to find lawyers or to advance any evidence she wanted to put before the Court on the application. 25Angelina said that she had insufficient time to respond to the service of the process upon her. But I am satisfied that process was served upon her by email by 4.45pm on Monday 30 September 2013 at an email address she uses. I am also satisfied that the Court papers were left at her residential address by 6pm the same evening. She had more than a full day to prepare for this application. 26She then sought for the Court to refer her to a pro bono lawyer. But the Court declined to do that. The undisputed evidence was that under the May 2013 Deed of Release she received the Morts property worth $500,000 and which Steven does not seek to designate as notional estate. The Court's pro bono referrals scheme should not be burdened with people who have $500,000 in unencumbered assets. Far more necessitous persons have demands upon the services provided under this scheme. Moreover, as these reasons show, even without legal representation the plaintiff was able to advance quite sophisticated legal arguments. 27Angelina took up the opportunity that the Court affdorded on 2 October in the course of argument to put on further evidence about Steven's undertaking as to damages, the balance of convenience and the detriment she would suffer if the caveats were extended when injunction granted. She had not put on such evidence by 2 October so the Court afforded her an opportunity to do so by 3 October and the matter resumed the next morning for an argument that took about 40 minutes, after which the caveat's were extended to today so the Court could give judgment today.