Tanev v Tanevski

Supreme Court of NSW|2017-08-23|Before: Parker J

Judgment

These proceedings concern the estate of the late Dusanka Tanevski who died in 2005.
The deceased was born in Macedonia (then part of Yugoslavia) in June 1929. She married her husband, Cvetan Tanevski, in Macedonia and they had four children. Their oldest son, Janko Tanevski, was born in 1950. He lives in Macedonia and has played no part in the proceedings. The second child, Traiko Tanevski, was born in June 1953. He is the first defendant. Their third child, Blagica Pandilovski, was born in May 1956. She is the second defendant. Their youngest child, who was born Vase Tanevski, but is now known by the surname Tanev, is the plaintiff. He was born in February 1959. For convenience and without disrespect, I will refer to the members of the family, apart from the deceased, by their Christian names.
The deceased's husband, Cvetan, migrated to Australia in 1971. In 1973 he was joined by Traiko. In March 1974 the deceased followed with Blagica and Vase.
In August 1974 the deceased and her husband, Cvetan, purchased a house in McDonald Street, Berala, as the family home. The property was registered in the names of Cvetan and the deceased as joint tenants. At various stages each of Blagica, Traiko and Vase married and left home. Vase's marriage subsequently broke up. At some point in the 1990s (there is a dispute as to when, which I refer to in more detail in due course) he moved back to the family home at Berala. He has lived there ever since.

Issues for decision

The primary relief sought by Vase as plaintiff was a declaration that the Berala property is held on constructive trust for him, or the payment of equitable compensation. The relief was sought by way of equitable estoppel, on the basis of promises allegedly made by Cvetan and the deceased that Vase would ultimately receive the property. An alternative claim was made on the basis of the "failed joint venture" equity recognised in Baumgartner v Baumgartner (1987) 164 CLR 137.
The defendants dispute that any such promises were made. They also dispute that Vase has any entitlement to equitable relief on any of the bases put forward. In addition, the defendants rely on the indefeasibility provisions of the Real Property Act 1900 (NSW), s 42. The defendants rely on s 42 in two ways. Firstly, they contend that the provision protected the deceased from claims based on any promises or conduct by her husband, Cvetan. Secondly, the defendants contend that their registration as proprietors pursuant to the grant of probate protects the estate from the claims now made by Vase.
In theory, if Vase were successful in his equitable proprietary claims, he would be entitled to a constructive trust over the whole of the Berala property, which would then not be available for meeting liabilities of the estate. However, at the hearing, counsel for Vase accepted that, even if successful, he could not realistically expect to obtain relief to this extent. Counsel accepted that the deceased's funeral and testamentary expenses, and the defendants' costs of defending these proceedings (on a solicitor-client basis) would have to be paid out of the proceeds of the Berala property in priority to Vase's claim, except to the limited extent that there might be assets available outside the property to satisfy those costs. I think this concession was properly made; had it not been, this would have been an appropriate case to make an order in advance of the hearing for payment of the defendants' costs as executors out of the property, as in Re Dallaway [1982] 3 All ER 118; 1 WLR 756.
Counsel for Vase accepted that for practical purposes, therefore, the property would have to be sold. Accordingly, consent orders were made in the course of the hearing for Vase to give possession of the Berala property to the defendants to allow them to sell it. Vase's equitable proprietary claims are, therefore, limited to the net proceeds of the sale, less funeral and testamentary expenses and the defendants' costs of the proceedings (except to the extent that there are other assets of the estate available to satisfy those costs).
If the plaintiff is unsuccessful in his equitable proprietary claims, he seeks to make an application for increased provision from the deceased's estate. Because the deceased died in December 2005, the applicable family provision legislation is the Family Provision Act 1982 (NSW) as it stood at that date ("FPA"). An extension of time would be required in order to make such a claim. The defendants oppose both the grant of an extension and, should an extension be granted, any claim for further provision.
In the course of his evidence, Vase described his mother's condition at the time she executed the will as weak and, to some extent, mentally confused. However, counsel for Vase confirmed that no challenge was being made to the deceased's testamentary capacity.

Factual findings

Vase gave evidence in his case and each of the defendants gave evidence in the defence case.
Vase has a personal interest in the outcome of the proceedings which ought to make the Court pause before accepting his evidence on issues where other witnesses have died and are not in a position to contradict him: see Evans v Braddock [2015] NSWSC 249 at [67]-[71]. The same observation applies to Traiko and Blagica, but it is less of a factor for them because, as defendants, they do not bear the onus of proof on the issues before the Court.
Vase had a limited education. His last year of schooling was in Macedonia in 1973, and he thus left school when he was 14 years old; he did not attend school in Australia.
Soon after getting his driver's licence, Vase suffered a serious driving accident. Vase's affidavit identified this as having happened in about 1976. In other evidence, he placed it in 1978, which I think is more likely. Vase was unconscious for a period of two weeks or so, and was in hospital for several months.
Expert evidence was presented on behalf of Vase by Dr Batchelor, a neuropsychologist, and Dr Potter, a psychiatrist. Their reports were admitted without objection and they were not cross-examined.
Dr Batchelor administered tests to Vase both as to his intelligence and his memory. The test results were adjusted (in a manner that was not detailed in Dr Batchelor's report) to reflect age and educational influences. Dr Batchelor's conclusion was that generally he was functioning in the "low average" range (comparable to 46% of individuals of the same age and having the same level of education). His speed of information processing was, however, extremely low (in the bottom 1%). Dr Batchelor found that his performance on tests which measure recent memory was markedly poorer than would be expected on the basis of his intellect. The discrepancies were highly unusual and had no clinical explanation. From this, and from his performance on a test for memory malingering, Dr Batchelor found that on at least some of the tests he had not been working to the best of his ability.
Dr Batchelor's opinion was: It can be concluded that he is of at least low average verbal and nonverbal intelligence (the qualifier 'at least' being added as it is possible that he was also underperforming on those measures). The results also indicate that in terms of his auditory working memory … and his ability to learn and retain visually presented material he is of at least low average ability. In contrast, he performed well below expected levels of tests of information processing speed and the ability to learn and retain verbal information. It is possible that those functions have been disturbed as a result of neurological damage, psychiatric disorder or a combination of the two. That could only be definitively determined, however, if he fully applied himself to each of the tests comprising a neuropsychological assessment. When the individual is not working at their best, it is not possible to differentiate real from enacted [sic] impairment. Accordingly, I am only able to conclude that it is possible that processing speed and auditory memory have been disrupted. There is a large body of literature indicating that a reduction of processing speed represents a common consequence of both traumatic brain injury and psychiatric disorder. Although the latter would not be expected to selectively disrupt verbal but not visual memory, a selective disruption of verbal memory can occur following neurological damage. That is because verbal abilities are controlled by the left hemisphere of the brain and nonverbal abilities by the right. Thus, when damage has been confined to or is maximal in one hemisphere, a verbal nonverbal disparity can result. Accordingly, it remains possible that Mr Tanev is suffering an impairment of auditory memory secondary to brain injury.
Dr Potter did not conduct any further tests of his own but commented on the results obtained by Dr Batchelor. He also recorded the following based on his interview with Vase: His memory and concentration is difficult at times. For shopping he will write everything down. He constantly thinks about whether he has switched off the iron explaining, "the fear that something will happen if not switched off". He stated an inability to follow the storyline and recall the story when reading or watching television. He has the television on, "to make a noise".
Dr Potter's conclusion was: He gave an inconsistent and unreliable history appearing to wish to emphasise his aloneness and a fear of being homeless. Reflecting the comment above, I notice on Page 8 of the report by Dr Batchelor, under the heading of "Opinion", at the beginning of the first paragraph, her comment, "Mr Tanev was not working to the best of his ability". He did describe features of anxiety although not the depth and breadth of signs and symptoms required for a formal psychiatric diagnosis. At this assessment he did not demonstrate any clear features of a formal psychiatric diagnosis. Reflecting the outcome of this assessment, and within the material provided by you, particularly the report by Dr Batchelor, it would be reasonable clinically to see Mr Tanev as a man who has, through his life, been compromised intellectually and/or emotionally, possibly the result of early development and the motor vehicle accident.
It was not clear what use counsel for Vase sought to make of this evidence. On the one hand, with an eye to Vase's family provision claim, counsel suggested that he was in a position of dependency because of mental slowness. On the other hand, counsel did not accept that the evidence made his claimed recollection of conversations going back to the 1970s unreliable. Counsel submitted that the evidence had not been responded to by the defendants, nor had it been cross-examined upon. However, the defendants had no obligation to try to resolve the tensions which the evidence created for the plaintiff's case.
I accept Dr Batchelor's evidence as far as it goes. But that does not mean that I accept the submissions made by Vase's counsel. On the one hand, Dr Batchelor did not express the opinion that Vase's cognitive functions were so badly impaired as to make him dependent on the deceased (or Cvetan). Although Dr Batchelor found that Vase's intelligence was below average, she placed him only in the bottom 46% of people adjusted for his education and age (apart from his very low processing speed). On the other hand, Dr Batchelor's opinion concerning his memory was quite explicit: it was much below what would ordinarily be expected, and that must either have been a result of deliberately not trying or some form of injury which had affected his memory processes. Neither hypothesis says much for his reliability as a witness. Nor do the difficulties with memory and concentration recorded by Dr Potter.
Dr Potter said that "it would be reasonable" to see Vase as having been "compromised intellectually and/or emotionally" and that this is "possibly" the result of the accident. However, he did not actually express any concrete opinion of dependency. In my view, this does not take matters any further.
I think the reliability of Vase's evidence in these proceedings is generally suspect. As will be seen, some aspects of his evidence are clearly inaccurate. There were inconsistencies between his oral evidence, his affidavit evidence, and what he wrote in a letter to Traiko and Blagica in 2009, to which I refer in more detail below. Under cross-examination, his evidence was at times unclear or internally inconsistent.
For the purposes of Vase's family provision claim, both Traiko and Blagica swore affidavits dealing with their financial position. Further evidence produced prior to the hearing showed that in various respects they had understated the value of assets belonging to them or their spouses (and in Traiko's case, his income). Both Traiko and Blagica were cross-examined on these understatements, and I address them in more detail when making findings on their actual financial positions below. Both sought to explain the understatements as approximations or mistakes. In Traiko's case, I was not satisfied by his explanation; the understatement of his income and of the estimated value of his home (at [142]-[143] below) appeared to me to have been reckless at best. For this reason, I have treated his evidence with caution. With Blagica, however, I am not satisfied that her understatements were deliberate. I see no reason not to accept her evidence as generally accurate, as far as it goes.

Purchase of Berala property

In March 1974 when the deceased, Blagica and Vase arrived in Australia, they moved into a rental home at Lidcombe where Cvetan and Traiko were already living. Blagica and Vase also obtained work, as, apparently, did the deceased.
Vase, Traiko and Blagica all gave evidence about the purchase of the Berala property and about the family's finances from 1974 onwards. According to Vase, Cvetan said to the family on a number of occasions in the first two months or so after March 1974 words to the following effect: We all need to work together to save money for a deposit to buy a house. We need to build a home together. You go and get a job, and bring home your pay cheque.
Vase said that all members of the family agreed and the Berala property was purchased "about 6 or 8 months" later.
According to Vase's initial affidavit, he gave his earnings to his father. In a later affidavit, he said he gave his money to his "parents". In his oral evidence, he said that he generally took some money from his pay packet for himself and gave the rest to his mother.
According to Traiko, he and his father were responsible for finding the Berala property and they alone provided the deposit monies, from amounts they had already saved. He confirmed that there had been a family arrangement to pool the earnings of the family members so as to pay the household expenses and the balance of the loan. Traiko's affidavit stated that monies were borrowed from the Commonwealth Bank of Australia ("CBA") and that the loan was discharged in about 1977 or 1978. Blagica's affidavit was to the same effect.
In Traiko's oral evidence, the position became more complicated. Traiko said that there were actually two loans from the CBA: one a regular home loan and another loan at a higher interest rate. Traiko acknowledged that the indebtedness may not have been completely discharged; rather, he said that the higher interest loan had been paid off and the regular home loan may not have been paid off, or completely paid off.
The only documentary evidence before the Court was the transfer, which was registered on 28 August 1974, and a 1981 letter from the CBA to Cvetan and the deceased. The transfer shows that the purchase price was $28,000. The 1981 CBA letter notified Cvetan and the deceased (who as joint tenants were presumably joint borrowers) of the variation of the interest rate on their housing loan. The term of the loan was stated as twelve years having commenced in November 1974 (which would imply repayment by about 1986 or 1987). The outstanding balance was shown as approximately $5,200 with monthly payments of $109. I infer that the loan referred to was the regular home loan component of the monies originally borrowed in 1974; the fact that the loan repayments were recorded as having begun only in November of that year is not explained but it may be that the purchase was originally effected with the assistance of the more expensive bank finance and the home loan was obtained somewhat later.
It is common ground that there was some sort of pooling arrangement. However, I am unable to accept that Vase's account is complete in all of its details.
On Vase's account, the agreement was reached before the property was purchased and included the deposit for the property. Traiko's evidence was that the contract to purchase the land was entered into in April or June; although this is not supported by documentary evidence, June seems likely, having regard to the fact that the settlement took place in August. Vase's evidence would result in a period of eight to ten months between his arrival and the purchase, which is, on any view, too long. On balance, I prefer Traiko's evidence on this issue: it seems to me to be more likely that Cvetan and Traiko between them had already saved sufficient funds to cover the deposit before the other members of the family arrived. I am not satisfied that the pooling arrangement was made before the property was purchased or that any of the deposit resulted from that pooling agreement.
As I have mentioned, Vase gave conflicting evidence as to whether the monies were paid over to Cvetan, or the deceased. However, on his own evidence, his father took the lead in the pooling arrangement and the evidence of Traiko and Blagica was that their payments were made to Cvetan rather than the deceased. Furthermore, Traiko gave evidence that when his father died he was given responsibility for handling the bank accounts on behalf of his mother. I infer that this was because that was what was expected of him as the senior man in the family. Vase also referred in his evidence to giving money to his mother because, he said, he felt sorry for her as his father controlled the finances and his mother had no money of her own. I am not necessarily satisfied that Vase did make regular gifts to his mother, but this aspect of his evidence also supports the view that the family's finances were controlled by Cvetan. It also emphasises that the pooling arrangement was not confined to the payment of the mortgage debt, but extended to all of the household expenditure.
Vase said that his first job after arriving in Australia was as a welder. He said that he hurt his eyes welding and stopped work for the company after "about eight months". He then worked for a company known as Selektro Parts, training to repair television tuners. He said he worked there for about two years. He then worked as an apprentice for a company called Commodore TV and Video Services. While he did the apprenticeship, he studied electronics at Sydney TAFE. The course lasted three years or so. He said his work at Commodore was interrupted by the car accident and he spent about six months convalescing.
In his affidavit, Vase gave approximate dates of commencement of these periods of employment, but the dates do not reconcile with the periods of employment given and are not consistent with the dates in the 2009 letter; the dates in those letters seem to reconcile better. Based on the 2009 letter, Vase would have commenced work as a welder in May 1974; he would have started work with Selektro Parts in about March 1975, and he would have started work at Commodore in late 1977 or early 1978. The car accident would have occurred in 1978 and he would have completed his apprenticeship in 1980 or thereabouts.
According to Vase, his wage was $75 per week while working as a welder, and with overtime he usually earned $110 per week. He said he gave all of his earnings to Cvetan. At Selektro Parts, Vase said he earned $90 to $120 per week; he said he kept $20 a week for himself and gave the rest to Cvetan. He gave no figure for his earnings with Commodore, but said he gave "about half" of his pay packet to his father. He said that he had purchased the car in which he had the driving accident. He said that after he left Commodore, he earned approximately $150 per week in his next employment. He continued to contribute a share of his income to household expenses until he left home in about 1986. A later affidavit gave earnings figures of $200 per week from 1978 to 1981, increasing to $300 per week in 1982 and up to $500 per week by 1986, with overtime on top of that.
According to Traiko, at the time the pooling arrangement was made he was earning $120 per week and Cvetan was earning $75 per week. Traiko said that he, not Vase, had bought the car. Blagica said that she was earning $70 per week and Cvetan was earning $75 per week. It was common ground that the deceased was also working at the time but there was no evidence as to how much she was earning.
I do not regard this evidence as a reliable enough basis for making findings as to who contributed what to the pool. It was all apparently based on unaided recollection and there was no independent evidence (for instance, as to what the relevant award rates were at the time) to corroborate it. But I think it would be very surprising if Vase, who was only 15 years old when the property was purchased in 1974, was earning as much as his older brother, Traiko, or his father. His earnings would also have been substantially interrupted by the car accident.
The only finding I can make is that after the Berala property was purchased, in August 1974, all of the members of the family gave a share of their earnings to Cvetan. Cvetan used those monies and his own earnings to cover the loan repayments on the property and the household expenses, and to pay off at least the expensive bank debt used as part of the purchase (which was paid off in 1977 or 1978). The level of contributions required from the children was probably reduced after that point. It is not possible to make any finding as to whose contributions went where nor can I make any finding as to the relative level of contributions, although overall I would expect that Cvetan and Traiko would have contributed disproportionately more to the monies in the pool up to 1978.

Alleged capital contribution by Vase

Both Blagica and Vase gave evidence of having contributed money at Cvetan's request to assist the oldest son, Janko, to buy a house in Macedonia. Blagica's evidence was that the request was made to her in the first half of 1980; she provided the sum of $8,000 on the basis that Cvetan would repay her later. Cvetan and the deceased then took the money with them on a trip to Macedonia. Blagica dated the trip to Macedonia as taking place in the middle of 1980 (that is, during the northern summer). She said that in 1993 her parents sold a property they owned in Macedonia and she received repayment of $7,000 from Cvetan. None of this evidence was challenged.
Vase's car accident led to a court case in which he successfully claimed compensation. According to Vase, about six or eight months after he received the compensation, one of his relatives who lived nearby decided to move to Canberra and suggested that he (Vase) buy the house. Vase said that he went to see his father at the Berala property and that they had a conversation to the following effect: Me "Tom is going to sell his house to move to Canberra. I could buy his house with my compensation money." My father "Don't worry about buying that house. We need to help your brother Janko in Macedonia. We need to buy him a house there. Give me the money, so we can buy him this house in Macedonia. Don't worry. This house here will be yours. Traiko has a house, Blagica has a house. This will be yours."
Vase continued: My father and I had this conversation while playing chess in the sun room near the kitchen. While we were talking my mother was present. She did not say anything but I could see that she was looking at my father as he spoke and appeared to me to be listening carefully to what was being said.
According to Vase, following this conversation, he withdrew a total of $25,000 in cash from his bank account and provided it to his father, keeping only approximately $4,000 for himself. According to Vase, his father and mother took the money with them when they went to Macedonia shortly afterwards.
Although Vase's affidavit evidence was that he received $29,000 in settlement of his claim, in his 2009 letter to Traiko and Blagica, described in more detail below, Vase said that the settlement had been $22,000. Traiko's evidence was that he attended the court hearing and that the settlement was $7,000. When cross-examined on the discrepancy between the $29,000 figure in his affidavit and the $22,000 figure in the letter, Vase sought to explain it by asserting that he had received two amounts: $22,000 in compensation and $7,500 by way of repayment for medical expenses. I was not satisfied with this explanation; it seems very unlikely that, having regard to his family's financial position, Vase would have paid for his treatment out of his own pocket; and if the treatment was paid by Medicare, then any repayment would have gone back to Medicare rather than to Vase.
The copy of the 2009 letter in evidence was annotated with a reference to the $22,000 figure as incorrect and with the figure of $7,500 written against it, apparently by Traiko. Counsel for the defendants submitted that Vase invented his evidence about the supposed $7,500 payment for medical expenses by referring to the annotation without appreciating it was Traiko's, and that this explained the discrepancy between Vase's original $29,000 figure and the $29,500 total of the two figures in his oral evidence. This is plausible, but it is sufficient to say that there was no contemporaneous documentary evidence to throw any light on how much Vase in fact received by way of settlement and I am not satisfied that the $29,000 figure (or the $22,000 figure in the letter) is accurate.
In the letter, Vase asserted that he had provided $10,000 to $15,000 for Janko's house, rather than the $25,000 alleged in his affidavit. Vase sought to explain this discrepancy in a number of ways. First, he said that it had been a mistake. He later said that he had adopted the figure only for the sake of seeking a settlement because his sister, Blagica, had a fixed (and according to him, inaccurate) view that he had provided a lesser sum than $25,000. Counsel for Vase submitted that the discrepancy did not matter: on any view it was a significant amount. However, I do not find myself able to make any particular finding as to the amount which may have been provided, and it remains possible that any monies provided by Vase were repaid, at least in part, as Blagica's were.
On the dates in Vase's affidavit, the conversation with Cvetan about buying a house for Janko would have taken place in about 1977 or 1978. Vase's 2009 letter placed the settlement of his claim in 1980. On any view, there are difficulties with Vase's account. On Traiko's evidence, he did not buy his own house until 1979. Blagica got married in late 1980 and moved to her husband's apartment afterwards; she did not have her own house until she and her husband purchased one in 1988. Neither Traiko nor Blagica were challenged on this evidence.
Accordingly, the statement attributed to Cvetan that Traiko and Blagica had their own houses could not have been made if the conversation occurred before late 1980 (treating the reference to Blagica having her own house as a reference to her husband's unit). On the other hand, if the conversation took place in or after late 1980, the money had already been provided to Janko.
In the circumstances, I am not satisfied that events happened in the way that Vase described in his affidavit. Vase may have provided money as Blagica did. But I do not accept that he provided $25,000 and I am unable to make any finding as to the amount he may have provided. Nor do I accept that any monies Vase may have provided were provided in response to a promise in the terms alleged. Any such payments might equally have been made in response to a request for a loan (whether or not subsequently repaid) or simply as a gift.
Furthermore, I am not satisfied that, even if there was a conversation between Vase and Cvetan about Vase helping with a house for Janko, the deceased participated in that conversation in the way in which Vase described. Although she was registered as one of the joint owners of the Berala property, I am not satisfied, for reasons I have given, that the deceased played any part in the family's financial decision making. Under cross-examination, Vase said that he frequently played games of chess with his father and they talked about many different subjects; sometimes his mother was not even in the room and sometimes she was present but asleep or was engaged in something else. When challenged about how he could be sure that she had been present on that occasion, Vase said that the conversation concerned the house and was important to him. That is plausible, and it provides some basis (although, in my opinion, not a sufficient one) for accepting that such a conversation might have happened with Cvetan. But I am not persuaded that the deceased's consent or involvement would have been seen as necessary and, accordingly, I am not satisfied that there is any reason for Vase to remember whether she was there or not.

Vase's marriage

In 1986 Vase went to Macedonia for a holiday. He paid for the holiday out of savings. While in Macedonia he met his wife, Maria. They were married in 1986 and Vase moved out of the Berala property. A year or so later they purchased a house at Guildford with mortgage finance. They were divorced in about 1991 and Maria took over the mortgage debt and full ownership of the Guildford property.

Vase's return to the Berala property

For the next few years Vase lived in rental accommodation. At some point thereafter, he moved back to the Berala property. According to Vase's affidavit, this was in 1994 or 1995, although this is disputed by Traiko. I am not able to determine precisely when it took place.
Vase said that his father had open heart surgery in 1994, at around the time Vase moved back to the Berala property. He said that he gave up his work as an electrical repairman and started working as a telemarketer for financial companies in the evenings (between 4pm or 5pm and 8pm) and on Saturdays part-time. Vase said that during this period he was earning around $250 to $300 per week if he was lucky and from this money he paid for petrol (his parents did not have a car) and contributed to the household expenditure; his parents, each of whom received a pension, also contributed.
Vase said during the day he looked after both his parents, until his father died in 2001. Other evidence was not consistent with this, at least for the whole period. In the same affidavit, Vase said that Cvetan's health was reasonably good until 1997 or 1998 when he came back from Macedonia having suffered heart problems while he was over there. Before that, all he was doing for his father was measuring his blood sugar levels three or four times a day and measuring his blood pressure once every week or so; he also attended medical appointments with his father. During this period, the cooking for the household was shared between Vase, his father and his mother.
Vase said that Cvetan's health was poor after his return from Macedonia in 1997 or 1998. He said he continued to take him to medical appointments, measure his blood sugar levels and measure his blood pressure. He also said that he took care of the backyard. The cooking for the household and his father's washing was shared between Vase and the deceased. Vase's 2009 letter stated that he worked for an organisation called Combined Financial Service from 1997, but that the hours were 9.00am to 8.00pm six days a week and 10.00am to 1.00pm on the seventh day. The letter stated that in 2001 he started working for another finance company but resigned after his father died in November 2001 to look after the deceased.
This evidence would tend to suggest that the deceased did not require any particular care or assistance during this period. But Vase also gave evidence (referred to in more detail below) that the deceased's health declined after 1998. He gave evidence in cross-examination that a carer's pension was paid for his mother, but then said that in fact the care was being provided by his father and his father was receiving that carer's pension.
It is not possible to reconcile all of these inconsistencies. I accept that Vase contributed financially to the household, but Cvetan and the deceased did so as well, and Vase was living there rent-free. I also accept that Vase contributed to the household tasks, and that the burden may have increased as his parents' health declined. However, I do not accept that household tasks took up anything like all of Vase's days; it seems to me likely that Vase was able to work full-time at least up until his father's death, albeit that the hours claimed in his letter of 2009 (69 hours per week) may be exaggerated.
Traiko's evidence was that on occasion Cvetan would say to Vase, in the presence of other family members, that he would end up living in the street. Apparently this was said to motivate Vase to provide for himself. This aspect of Traiko's evidence was not challenged and I see no reason not to accept it. Cvetan seems to have been a saver, and to have encouraged his children to be savers. In Vase's affidavit, Vase said that Cvetan said the Berala property would be left to him. But Traiko gave evidence that Cvetan stated his testamentary intention as being that the Berala property would be left to the three children living in Australia in equal shares. Traiko was not challenged on this evidence, and I am not satisfied that Cvetan ever said that Vase should get the whole of the Berala property.
According to Vase, his move back to the Berala property followed his father having a heart attack and a conversation which he said he had with his father in 1994, again playing chess. He said his mother was also present. According to Vase, the conversation was as follows: My father "Come back to the house and look after us. When we pass away, you will have the house." My mother "Move in here Vase. Live with us. Take care of us. This house will be yours after your father and I are gone." Me "OK. I want to help."
Again, such a conversation is impossible to date by reference to contemporaneous evidence and is uncorroborated. It is not readily reconcilable with other facts. First, it sits very uncomfortably with the undisputed evidence about Cvetan's view that Vase should provide for himself. Second, Vase shared the household chores and contributed to household expenses, but I am not satisfied that he did in fact devote himself to caring for his parents, at least when he first moved back to the property in 1994 or 1995. Third, it is difficult to reconcile with Vase's subsequent conduct, which is discussed in more detail below.
I am not satisfied that such a conversation occurred in the terms alleged by Vase. And, for the same reasons as I have given in relation to the earlier alleged conversation about the money for Janko's house, I am not satisfied that, even if some sort of promise was made by Cvetan to persuade Vase to return to the house, the deceased was party to it.
Vase's evidence was that in about 1998 his mother became increasingly unwell. She needed insulin injections which he administered to her. He also made arrangements with her doctor for a carer to come and wash her once a day. He said that around 2001, her condition worsened and she needed Vase's assistance to walk.
Vase's evidence was that after his father died he cared for his mother. Later (perhaps a year or two after his father's death), Vase started to receive a carer's pension for her. He said it was around $200 to $300 per week. He said that he was doing all of the housework, grocery shopping, washing, garden work and cooking apart from one meal in the morning about three days per week from Meals on Wheels. Traiko and Blagica did not dispute that Vase had been helping the deceased. However, they said that they also contributed by picking her up and taking her over to their houses. Traiko's evidence was that the deceased would regularly stay with his family at his home in Berala. Blagica's evidence was to a similar effect, stating that the deceased would have dinner at her (Blagica's) home on a regular basis and that the deceased would stay there on most weekends.
According to Traiko and Blagica, they arranged for a carer to visit the deceased five days a week to help her bath and dress. Vase's affidavit evidence was that a "community nurse" would come on most weekday mornings to assist with bathing the deceased, but in cross-examination, Vase claimed that the community nurse was not a "real carer" but was "just a helper".
I have already referred to the deceased's will which left her estate (consisting essentially of the Berala property) to Traiko, Blagica and Vase in equal shares. The will is dated 8 October 2002. It was witnessed by a Mr Roger Shenko, solicitor, who was the principal of a firm called "Berala Law Group". Vase said he was present when the will was signed by the deceased. He said that Mr Shenko arrived with an associate (who he thought was a man; in fact it was Mr Shenko's wife, who appears to have worked in the practice) and his brother, Traiko. He could not recall his sister, Blagica, being present, but her evidence was that she was present and this was not contested. According to Vase, Mr Shenko gave an explanation of the contents of the will, saying that it provided for the deceased's estate to be left in three equal shares. Vase then helped his mother to sign it. He agreed that he made no outward protest at the idea of the property being left in equal shares. As I have mentioned, there was no challenge made to the deceased's testamentary capacity. I think I must accept, therefore, that the will reflected her intentions and that Vase was aware from that point forward, at the latest, that the property was to be shared equally with his siblings.
I assume that after Cvetan's death, the household expenses were shared between the deceased and Vase. Vase said in his evidence that he undertook various jobs around the house and paid for necessary supplies. It was not clear from the evidence whether this was before or after his mother died. In any event, the tasks done appear to have been relatively minor ones, in the nature of repairs and replacement. I am not satisfied that Vase made any significant contribution to the present value of the house.
I accept that after Cvetan died, an increased burden fell on Vase to help the deceased. However it is not clear to me how much, if any, actual financial detriment this entailed. I think it likely that full use was made of available community services in the form of Meals on Wheels and the community nurse (incidentally, I would reject Vase's characterisation of the nurse as being merely a "helper"). Household tasks such as cooking and shopping may not have been substantially more time consuming than they would have been had Vase been living on his own. It was not clear from the evidence how much, if at all, care for the deceased impinged on Vase's ability to undertake paid work.
Vase gave evidence in his affidavit of a number of conversations he said he had with his mother after his father died in which she allegedly promised him the property when she died. However, this is uncorroborated and not consistent with the deceased's testamentary intentions as reflected in the will. It is also not consistent with Vase's subsequent conduct, discussed in more detail below. I am not satisfied that any such promises were made.
As I have mentioned, the deceased died in December 2005. On 18 July 2006, Berala Law Group wrote to Vase as follows concerning the deceased's estate: We confirm we have been instructed to act on behalf of Traiko Tanevski and Blagica Pandilovski in relation to the probate of the above Estate. The last will and Testament of Dusanka Tanevski appointed Traiko, Blagica and yourself as joint executors. The will also provided that the estate be divided equally between the three executors. We enclose a copy of the will for your records. We accordingly require your co-operation with the execution of all documentation to the Supreme Court in respect of the application for probate. Would you kindly sign the copy of this letter and return it to our office within seven days so that we may commence the necessary documentation. Should you have any enquiries please contact our office.
On 17 August a follow-up letter was sent. A copy of the letter as signed does appear on the solicitors' file, but on 30 August the solicitors reported to Traiko: We … confirm we have on this day met with your brother. Your brother advises us that he is currently in the process of negotiating with both you and your sister and he is confident of resolving the matter within the next two or three weeks. Accordingly, he has requested that we refrain from taking any action or filing any documents at this point in time. We now await your further instructions in this matter.
According to Traiko, Vase's position had been that he did not wish to spend any money on lawyers and did not want to take any action to tidy up the deceased's affairs. In September, Traiko and Blagica instructed the solicitors to apply for probate. On 29 September this Court granted probate of the deceased's will to Traiko and Blagica. The grant of probate referred to Vase as the third executor but stated that he had "neglected to prove the will".
On the same day that probate was granted, 29 September 2006, Traiko and Blagica signed a transmission application to have the property transferred into their names as executors. The transmission was subsequently registered.
In November 2006, Vase suffered an injury at work. He ultimately received a compensation payment of $50,000.
According to Traiko, after the grant of probate, Vase opposed the sale of the Berala property. When the issue was raised with him, he became upset or agitated and would ask for more time to get ready to move out, or on other occasions he would say the market was not right and the sale should be delayed.
Blagica's evidence was to a similar effect.
According to Blagica, at one point Vase told her that he had cancer. It was not disputed that Vase said this and it was not suggested that in fact Vase was ever diagnosed with cancer. Vase asserted that he had been told that he had, or might have, cancer, but no corroborative evidence was produced.
Blagica also gave evidence that on occasion Vase had displayed aggression towards her. On one occasion he flipped over a table in her presence. Vase denied this in his affidavit. Neither of them was questioned about it in cross-examination.
I have already referred to the letter which Vase wrote to Traiko and Blagica in around 2009. The letter set out three options concerning the Berala property. The letter attributed a current market value of $425,000 to the property with sale expenses of $17,000 and an "outstanding mortgage" of $8,000 (this is puzzling, as it appears the CBA home loan had long since been repaid and by then the property had been transmitted to Traiko and Blagica as executors), giving it a net value of $400,000. The first option was to sell the house and distribute the proceeds $95,000 to Blagica, $90,000 to Traiko and $215,000 to Vase. The letter continued: If both of you are disputing /don't like the above -and we can not resolved properly because of something other than sitting down and developing a plan of why and what, then it means that you will dispute what and why I am asking that above and you want to resolve it in court by somebody that doesn't know anything about you and then you will pay them the money to find out about you and then they going to judge you. How stupid !? and if you do decide on second option. taken to Avg Expenses - Supreme Court - $30,000.00 -up to- $100,000.00 Avg Expenses - Solicitor's Fee's - $15,000.00-up to- $20,000.00 Avg.Barister Representations Fee's - $10,000.00-up-to $20,000.00 Other Expenses that may happen: Affidavits may be issued to Persons to testify such as: Shenko the Previous Solicitor at Berala also: Dr Govindan also Dr's at Concord Hospital treating my father at the time of him signing the will under influence of Morphine. and also other's that were looking after my mother at the time of signing the will All the Expenses together may be escalating between $55,000.00-up to -$140,000.00 Plus Witnesses up to $10,000.00-up to -$50,000 ……….………………………………………………………………………………… Option 2: Avg.Exp. $65,000.00 -up-to $190,000.00 N.B.So If you want to go to Supreme Court because you /or I are in dispute you going to pay!? Option 2: Avg prices to get something a lot less then Option 1. -
Option three was that Vase pay Blagica $95,000 and Traiko $90,000 to buy the house from them but this was conditional upon Vase obtaining a mortgage.
There is also in evidence a letter dated 28 June 2012 from Vase to Blagica and Traiko and their spouses and children. After setting out his health problems and his financial position, Vase said: I have been pushed by all of you to get out of the house and the house to be sold so u can have a share of the house so u can pay off your mortgage-s…very nice thought, even though I have spent years of looking after my parents that you could not conceptualize even 5% of what I have gone through and decisions I had to undertake as they health was deteriorating I was leaving through hell… Now, I thought that I can have a little peace , and what I am getting a different hell from your family and family Tanevski…pushing me to get out of the house so you can satisfy your needs….well as I said previously it is a very good thought But where would I go, on a disability pension who is the financial institute that will help me to purchase a place to live in…. Even though if I can purchase a place that is going away and living totally alone , Which I would have nothing to live for, as at present I am getting occupied with things I have to do around the house or in the house, [renovating as much as I can with what I have or can] , but being pushed from both of your families Pandilovski and Tanevski to get out of the house so you can sell it and satisfy your needs ONLY DRIVES A SUCIDIAL THOUGHTS IN MY HEAD, WHERE my plan is soon as I finish with the house, renovating or repairing what I can , then you can have it , and have me hanging down the ceiling as I have nothing to live for any more. … What a life I am living resolving the issues of others misconceptions , understandings , conclusions all my life… and NOW I AM just driven to end it all because others can not understand, that what life is all about, LOVE , that's why I gave you the CD, introduction to course in miracles…. … What you are all doing now to me the [psychological pressure that you're imposing of me to either sell the house or kill my self] if I sell the house I have nowhere to go and no one to live with , so it would be better off killing myself… And before it I will send this letter to everyone to understand the psychological effect of both your family's Tanevski and Pandilovski having on me , and trying to evict me from the house , and that's why I have ended my life….
In his affidavit evidence, Vase said that following his mother's death in December 2005 he gave no thought to the question of her will and no one said anything to him about the will or the estate. He said he received a letter from Traiko and Blagica's solicitors, but this was "in or about 2007", that he understood the letter to say that he needed to attend the solicitors' office to sign documents and that he did not go because his mental state was too confused. In the light of the documentary evidence to which I have referred above, this is inaccurate. The evidence makes it clear that Vase was asked on several occasions starting from July 2006 at the latest to co-operate in obtaining probate and giving effect to the will and that he resisted doing so. I accept Traiko's evidence that Vase's objection was based on the supposed costs involved.
Vase's evidence was that he was first asked to move out of the house a few months after the letter from the solicitors. He said he went into the bathroom and cried and Blagica (who had made the request) left about ten minutes later. He said there was no further discussion about selling the house until 2009 or 2010. He said he suggested that he stay in the house and after his death it could go to Traiko's and Blagica's children, but that Traiko would not agree.
The next discussion to which Vase referred was when Blagica's husband told him that she needed to sell the house so she could give up work; this allegedly happened in about 2014. He also referred to a visit from Blagica in September 2015 wanting to sell the property.
I do not accept this account as complete or reliable. It fails to mention the two letters, the content of which speak for themselves. I am not able to say whether or not Vase actually flipped over the table as Blagica claimed, but I am satisfied that ever since 2006 he has resisted the sale of the house, including by emphasising his health and emotional problems and by veiled threats of self-harm. Although Traiko and Blagica may have allowed the matter to rest for lengthy periods, I am satisfied that Vase was always aware that the sale of the house was unfinished business.
As I have mentioned, a formal letter of demand requiring Vase to vacate the premises was served in February 2016. According to Vase, it was only after this happened that he sought legal advice from his current solicitors. On 8 April 2016, his solicitors lodged a caveat on the property on his behalf. The caveat included a statutory declaration made by Vase on 30 March. The interest claimed by the caveat was: Equitable interest as beneficiary in the estate.
This caveat still did not assert the proprietary claim which Vase now makes. That claim was not asserted until the proceedings were commenced in April 2016. Traiko and Blagica gave evidence that the first occasion on which Vase had made any assertion to them about the conversations with his father and mother allegedly promising him the house was when his initial affidavit, sworn in May 2016, was provided to them. Their evidence in this regard was not contested.
In a further affidavit sworn in June 2016, Vase said: Until I met with Mr Tarmo [Vase's solicitor in these proceedings], to the best of my recollection I had not seen the will of the deceased nor did I have any knowledge of the terms of the will, nor did I know that it was possible to challenge the terms of the deceased's will.
This evidence cannot be accepted. It is clear that Vase was aware of the terms of the deceased's will from October 2002 onwards. He also appears to have been provided with a copy of the will under cover of the letter from the solicitors for Traiko and Blagica in July 2006. If he truly was unable to recollect this in June 2016, his recollections on other disputed events could have no weight. Moreover, his 2009 letter suggests he did understand that the deceased's will could be challenged, although not specifically on family provision grounds.

Equitable proprietary claims

For reasons I have given above, I am not satisfied that the alleged promises by Cvetan to give Vase the property were made. Accordingly, the claims based on equitable estoppel (whether proprietary or promissory) fail.
As I understood him, counsel for the plaintiff did not at the hearing maintain that the evidence sustained a sufficient basis for a claim based on a "failed joint endeavour" equity. If I have understood the concession correctly, I agree with it. I do not accept that the pooling arrangement was put in place before the property was acquired, but even if it had been, I do not think that the intention of the family members at the time was necessarily that Cvetan and the deceased were not to have the benefit of the monies provided. Furthermore, any equity based on the "failed joint venture" would result in the property being held on trust for each of the family members according to their respective contributions to its purchase. As I have said, there is no basis to determine what the contributions in fact were, but it is clear, in my view, that on this analysis Vase's entitlement would not exceed the one-third interest to which he is entitled under the will.
Even if I were satisfied that an equitable proprietary claim had been available against Cvetan as a result of promises made by him to Vase, I am not satisfied that the deceased was relevantly a party to any such promises. Accordingly, she would have been protected against such claims by her registration as proprietor of the whole of the property following Cvetan's death: Real Property Act 1900 (NSW), s 42. It is not necessary to consider whether, if she were not so protected, the further registration of the transmission of the property into the name of Traiko and Blagica as executors would have defeated the claim.
Accordingly, the equity proprietary claims fail.

Family provision claim: extension of time

Pursuant to FPA s 16(1), the prescribed period for Vase to make an application for provision was 18 months after the death of the deceased. This period expired on 16 June 2007. These proceedings were not commenced until 15 April 2016, almost nine years later. That period cannot be extended unless "sufficient cause" is shown for the application not having been made within the period: s 16(3)(b). If this condition is satisfied, the period may be extended for such further period "as the Court may, having regard to all the circumstances of the case … allow": s 16(2).

"Sufficient cause"

As already mentioned, when the proceedings were commenced, Vase was asserting that he had not seen the will or did not know the terms of the will, nor did he know that it was possible to challenge the terms of the will. Presumably, this constituted the "sufficient cause" on which he relied for an extension.
I have already rejected Vase's evidence about lack of knowledge of the will. Whether or not he had forgotten it by 2016 (which I doubt), I am quite satisfied that he was aware of it in 2006, and, indeed, that he probably remained aware of it right back to the time when the will was made in October 2002.
Vase's assertion that he was unaware that he could challenge the terms of the will is more problematical. Counsel for the defendants submitted that Vase had been on notice of this since 2006 at the latest. However, the correspondence from Berala Law Group to Vase appears to have been written on the assumption that the solicitors would be instructed to apply for probate only. There is no suggestion in the correspondence of any rights Vase might have to challenge the will (which would, of course, have created a conflict with his obligation as executor to defend the will).
Vase's 2009 letter shows that he was then aware of the possibility of using court proceedings to upset the provisions in the deceased's will. However, on the evidence of the 2009 letter, it was not a clear or accurate understanding. In the letter, Vase appears to have contemplated challenging his father's testamentary capacity as well as his mother's. But his father's testamentary capacity was irrelevant to any claim against his mother's estate. Although the letter quotes figures for costs, I am not satisfied that the letter was the result of actual advice Vase received at the time. It may have been picked up or inferred from the results of Vase's own research or things he was told by friends or relatives. And even if the letter does indicate the possibility of challenging the will on testamentary capacity grounds, it betrays no understanding of making a claim for family provision.
Vase was not asked about where the information in the 2009 letter came from. In cross-examination, it was put to him that if dissatisfied he could have sought advice, but the cross-examination did not suggest that before June 2007 he knew of any grounds on which a successful challenge might have been made. On balance, I accept that Vase did not know prior to June 2007 that it was open to him to make an application for provision out of the estate on family provision grounds.
Of itself, a mere lack of knowledge of an ability to make a family provision claim may not be enough to amount to a "sufficient cause". In the ordinary course, where the estate had been distributed during the 18 month period, I would think that a lack of knowledge on the part of a potential claimant would rarely, if ever, be accepted as a "sufficient cause" for having failed to act: cf Madden-Smith v Madden [2012] NSWSC 146 at [24] per Pembroke J. But in the present case, the estate was not distributed. A lawyer would understand that once the property had been transmitted into the names of the executors they were able (and indeed were under a duty) to realise the property. But I see no reason to suppose that Vase would have appreciated this. Although he knew that the distribution and sale of the property was unfinished business, Vase remained in occupation and for practical purposes the transmission did not matter to him until his siblings pressed the issue.
For these reasons, and with some hesitation, I am satisfied that Vase had a "sufficient cause" for failing to make his application before the statutory period expired on 16 June 2007.

Discretion

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 concerned an application to extend a limitation period in a case of alleged medical negligence. The surgery in question took place in June 1979. The relevant limitation period was fixed at three years. It was not until January 1994 that the applicant obtained hospital records and then decided to commence proceedings. An application for an extension could only be brought if the applicant did not have the means of knowledge of a "material fact of a decisive character". This condition was satisfied but the High Court held by a 4:1 majority that the trial judge had correctly declined to grant the extension sought.
The majority Justices held that the fact that the statutory precondition was satisfied did not create some sort of presumptive right to obtain the order. It was still necessary for the applicant to demonstrate that, in the interests of justice, an extension of time should be granted.
Dawson J said (at 544): The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.
Toohey & Gummow JJ said (at 547): There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.
Their Honours went on to approve the following statement of principle (at 547): It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.
In an especially well-known passage, McHugh J said (at 551; citations omitted): The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
His Honour went on to say (at 555): When a defendant is able to prove that he or she will not now be able to fairly defend him or her self or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.
Although McHugh J spoke in this passage of the defendant demonstrating prejudice, the majority view, as represented by Dawson J and Toohey & Gummow JJ, was that the onus lies on the plaintiff to negative prejudice, at least if the defendant has discharged the "evidentiary onus" of raising it as an issue.
The issues which arise under FPA s 16 are directly comparable with those which arose in Brisbane South. FPA s 16(1) imposes a generally applicable limitation period on family provision claims. If s 16(3)(b) is satisfied, the Court may extend the period. But any such extension is discretionary under s 16(2). In my opinion, the principles which derive from Brisbane South are equally applicable to such an extension. In particular, prejudice is a recognised factor relevant to FPA s 16(2), and authoritative guidance is provided as to the scope and application of that concept in Brisbane South.
There is a question as to what degree of prejudice is involved. Counsel for Vase argued that the mere possibility of prejudice was not enough.
In Brisbane South, the surgeon in question no longer lived in Australia and at the time the application came on for hearing it had not been possible to make contact with him. Clinical notes existed but none of the other witnesses had any independent recollection of the relevant events. The trial judge had characterised the circumstances as involving "actual prejudice" and McHugh J (with whose reasoning Dawson J agreed) treated this as determinative of the application. It is clear that "actual prejudice" in this context meant something less than the loss of specific evidence which would demonstrably assist in resisting the claim. The absence of the surgeon seems to have been regarded as a form of "actual prejudice" even though the surgeon, if found, might have given evidence that was unhelpful to the defendant. For McHugh J, "actual prejudice" seems to have equated not only to a defendant's demonstrated inability to fairly defend him or herself, but also to a "significant chance" of such inability. Similarly, Toohey & Gummow JJ acknowledged that the surgeon might still be found but apparently considered that there would still be at least "some prejudice" to the defendant (at 550).
In Brisbane South, the majority Justices all accepted that prejudice was not confined to events which had occurred after the period within which the proceedings might have been brought in time. Once time had expired, all prejudicial events after the accrual of the cause of action were relevant. In the present case, it is therefore necessary to have regard to any prejudice accruing after the death of the deceased in December 2005. It seems unlikely that loss of evidence which took place before the deceased's death could ever be relied upon as a form of prejudice, and I put that possibility aside.
Counsel for Vase argued that an extension of time would not result in any forensic prejudice to the defendants because there was no dispute as to Vase's eligibility or as to his financial circumstances, which were said to be relevantly unchanged since the deceased's date of death. In my opinion, this approach is too narrow. As I discuss in more detail below, the issues on a family provision application are not confined to a comparison of the current financial circumstances of the plaintiff and the beneficiaries under the will being challenged. The derivation of the assets in the estate, the extent to which the plaintiff and the beneficiaries provided financial or emotional support to the deceased and the effect of that on their financial circumstances, and the deceased's previously expressed testamentary intentions are all potentially relevant and may be of great importance. Degradation in the quality of the evidence available to the defendants on these issues is very likely to give rise to substantial forensic prejudice.
Documents would once have existed which would have borne on such issues in this case. Bank records, employment records and records of Vase's compensation claim would once have existed to confirm or refute Vase's allegations about contributing to the purchase and mortgage payments on the Berala property and providing monies for Janko's house in Macedonia. Bank records, employment records, tax returns and social security records would have clarified the respective contributions by Vase, Cvetan and the deceased to the household expenses at the Berala property after Vase returned in the mid-1990s. Such records would also have allowed conclusions to have been reached about the level of expenditure on the property and on household outgoings, and the degree of assistance provided by Vase to his parents.
Had such records of Cvetan or the deceased survived at the Berala property when the deceased died, they would strictly speaking have belonged to the deceased's estate. However, for practical purposes, any such records were and are under the control of Vase because of his continued occupation of the Berala property.
Surprisingly, little attention appears to have been paid by either party to the survival of relevant documents. Vase did not give evidence about it and he was not asked about it in cross-examination. There was no evidence of any requests for discovery or production of such documents prior to the trial. On the face of it, the records from the 1970s and 1980s might have been expected to have disappeared long before the deceased's death. However, the survival of the CBA letter from 1981 shows that not all records have necessarily disappeared. The letter was introduced into evidence by Vase's counsel as part of a bundle used for cross-examining Traiko and Blagica, after Vase had already given evidence.
It might be argued, on the view expressed by Dawson J in Brisbane South, that the onus lay on Vase to negative any potential prejudice from the loss of documentary evidence since the deceased's death. This would have required Vase to establish either that there had been no further loss of documents over that period, or to identify the loss of documents and demonstrate that it did not create a significant forensic problem for the defendants at the trial. However, on the view of Toohey & Gummow JJ, such an onus would only have arisen if the defendants had first discharged their evidentiary onus by raising the potential for such prejudice. Counsel for Vase referred to the possibility of forensic prejudice in written submissions which he lodged prior to the hearing. In the general sense, forensic prejudice was therefore an issue which had been raised at the trial. However, the defendants did nothing to raise the specific question of prejudice from loss of documents. It must be remembered that, even though the records which formerly belonged to Cvetan and the deceased were in the custody of Vase, they were property of the estate and there was no evidence that the defendants, as executors, could not at least have found out once the proceedings were commenced what documents remained. Similarly, it would have been open to the defendants to issue a notice to produce to Vase for relevant records which would once have belonged to him to establish whether they still existed.
The defendants have, of course, lost the opportunity to subpoena records from third parties. Had Vase's application been made within time, it would be reasonable to suppose that bank and employment records could have been obtained going back to 2000 or so. But such records would only be required if the equivalent documents have not survived in the records of Vase, Cvetan or the deceased. However much one might suspect that this is so, there is no actual evidence of it. In my opinion, on the evidence in this case, the potential for loss of documents since the deceased's death cannot be a particularly weighty factor.
It was not suggested that any particular potential witness had died or become unavailable over the period since the death of the deceased. However, I think I can assume that over the ten years since then, memories have faded. In my opinion, the factor mentioned by McHugh J in Brisbane South, namely that the lapse of time may prevent a party even from appreciating what evidence is now not available, is highly apposite in this case. Where, as here, the critical events include what was said in conversations, evidence which allows the alleged conversations to be accurately dated, placed in an accurate sequence, and understood in the context of other conduct of the parties, becomes particularly important. Such contextual matters, the significance of which is only revealed when a claim is made, must be particularly vulnerable to fading recollection in the meantime.
Of course, many of the events go back to the 1970s and memories of those events are likely to have faded long before the deceased died in 2005. Even so, fading is a general process and I think I can assume that even for such historical events there is likely to have been an appreciable degradation over the further decade from 2005 to 2016. In any event, the circumstances and events relevant to the claim were not all historical. The evidence surrounding the deceased's execution of the will and Vase's involvement with that, for instance, are of very great significance in resolving the application.
The forensic prejudice which results from the lapse of time and the general fading of memory is not capable of being analysed in terms of onus according to the approaches of Dawson J and Toohey & Gummow JJ in Brisbane South. By their nature, the effect of such forces on the particular case cannot be identified and, therefore, cannot be proved or disproved. But I think there comes a time when the Court can be satisfied that such delay has given rise to "actual prejudice" in the sense in which that term is used in Brisbane South, namely, a "significant chance" that the defendant's ability to meet the plaintiff's case has been compromised. In this case, after a total lapse of time of more than a decade, I think such prejudice can be taken to be established. Vase's delay is thus a significant discretionary factor.
In my view, Vase's 2009 letter is also relevant for discretionary purposes. I have accepted that Vase was not aware before June 2007 that he could make an application for family provision. I have also accepted that the 2009 letter does not establish that Vase had received professional advice or that he was specifically aware of the ability to make a family provision claim. But I do not think that matters. The letter clearly shows that Vase knew that taking the matter to court was an option. In the letter, Vase sought to present the choice as one which his siblings had to make. But, in my view, it was a choice for him. If he did not receive professional advice at that time, he must have been aware, at the least, that it was open to him to do so. From that point forward, in my opinion, the delay was Vase's responsibility. It is true that his siblings might have moved earlier, but the inaction on their part was not truly voluntary; it was an understandable reaction to Vase's emotional blackmail. In these circumstances, I do not see why the discretion should be exercised in Vase's favour to overcome the delay from 2009 onwards.
In cases under FPA s 16 it has been conventional to identify four factors bearing on the discretion to extend time: see the references collected by Hallen J in Hughes v Sharp [2017] NSWSC 962 at [97]. The four factors are: (1) the reason(s) for the lateness of the claim; (2) whether the beneficiaries under the will would be unacceptably prejudiced if time were to be extended; (3) whether there has been any "unconscionable conduct" by either side; and (4) the degree of strength of the claim made by the party seeking an extension.
I have addressed factors (1) and (2) already. As to factor (3), Vase's conduct cannot be described as "unconscionable" in the usual sense of that term. But the fact that "sufficient cause" has been demonstrated, thereby opening the door to an extension, and the fact that there is no unconscionable conduct on Vase's part, do not of themselves justify relief. The approach in Brisbane South requires the Court to be affirmatively satisfied that it is in the interests of justice to grant the extension sought.
As to factor (4), in De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep) Powell JA questioned whether the degree of strength of the claim could be relevant in a case, such as the present, where the application for an extension is heard concurrently with the merits of the application. In any event, I deal below with the merits of the claim and conclude that I would reject it. In the circumstances, I do not think that Vase's case for an extension derives any support from this factor.
In the result, I do not think it is in the interests of justice, having regard to the circumstances of the case as a whole, to grant Vase the extension of time which he seeks.

Family provision claim: merits

The parties invited me, whatever conclusion I might reach on the extension of time, to express my views on the merits of the application. Given that it was fully argued, and in case I am wrong in my view that the extension should be refused, I will now do so. I will start by referring to further factual matters relevant to the determination of the application on its merits.

Deceased's estate

As I have mentioned, it appears that the deceased obtained work when she came to Australia and contributed her earnings to the pooling arrangement I have described with the other family members. Vase's evidence was that between 1978 and 1980 she suffered an injury at work and that thereafter she did not work. This was not disputed by Traiko or Blagica.
As I have mentioned, the deceased was receiving an aged pension when Vase moved back to the Berala property (she turned 65 in January 1994), and was contributing to household expenses from that pension. Apparently, at some point Vase became a signatory on the account. I assume that he applied the pension monies in that account to household expenditure at the Berala property for his mother and himself. The balance in the account at the date of the deceased's death was an asset of the estate but there was no evidence before me as to how much it was. Vase appears to have appropriated it to himself.
The only asset of the estate identified in the evidence is the Berala property. A valuation by a local real estate agent puts the current value of the property at $910,000 and this has not been contested.
The deceased's probate costs were paid by Traiko and Blagica. They have not been reimbursed as there are no available funds in the estate to do so. The amount outstanding is approximately $5,000. There may also be a reimbursement due for funeral expenses. The total costs, incurred and to be incurred, by Blagica and Traiko in defending the proceedings were estimated prior to the hearing to be approximately $118,000. The net value of the estate is, therefore, approximately $790,000 less any funeral expenses.

Vase's circumstances

Vase is now 58 years old. He lives alone. He has diabetes and pain or muscular problems in his left hand and arms as a result of his 2006 accident. There may also be lingering effects from his car accident, but, for the reasons given by Dr Batchelor, it is not possible to be confident of that. He claimed to be suffering from depression but does not appear to have been formally diagnosed.
According to Vase, he drives a 2000 model car and has about $23,000 (the remains of his settlement for his 2006 injury) in a bank account. He also owns a "bio resonance" machine which he values at $5,000-$10,000. He has credit card debt of approximately $3,000. Vase receives a disability pension of $444 per week (approximately $23,100 per annum). He also said he receives approximately $130-$150 per week for pamphlet drops (approximately $6,800-$7,800 per annum). After tax, this yields an income of approximately $28,000.
There was no evidence as to Vase's expenses. Vase said he was spending approximately $2,000-$2,500 a year on rates. He has paid no rent since he moved to the Berala property in the 1990s. Its current rental value is approximately $450 per week.

Traiko's circumstances

Traiko is now 61 years old. He lives with his wife, Frederika. They have two sons, currently aged 35 and 31.
Traiko suffered a heart attack in 1997 and has an ongoing heart condition. He suffered a further musculoskeletal injury at work in 2010. He claims to have been suffering from depression and anxiety since 2011.
Traiko ceased work in 2010 as a result of his injury. He is now on workers' compensation benefits. Frederika works as a shop assistant.
Traiko and Frederika own a house at Berala where they live. In his affidavit of 14 July 2017, Traiko estimated its value at $950,000 by reference to a sale which took place nearby. However, evidence at the trial demonstrated that Traiko's house is larger, and no doubt more valuable, than that property. According to Traiko, by the time of the trial he and his wife had only approximately $8,000 in joint bank accounts. Traiko owns a 1995 model car. He says he has no superannuation (having drawn on it since ceasing work due to his injury) and Frederika has approximately $40,000.
In his affidavit of 8 February 2017, Traiko said that he was receiving $450 per week in workers' compensation. However, evidence tendered at the trial of his bank accounts shows that he was receiving regular weekly payments of $700. His tax returns for 2014, 2015 and 2016 show taxable incomes of approximately $48,500, $45,100 and $45,200 respectively. I am satisfied that the $450 was a deliberate or reckless understatement. Based on a current income of $700 per week, his annual income would be $36,400. Frederika was said to be earning approximately $650 per week. Her tax returns for 2014, 2015 and 2016 show taxable incomes of approximately $56,200, $28,900 and $42,100 respectively. Based on a current income of $650 per week, her annual income would be $33,800.
Counsel for Vase argued that Traiko had failed to put accurate evidence before the Court as to his financial circumstances and, accordingly, the Court should turn a deaf ear to any submission based on his financial needs: see Bruce v Greentree [2015] NSWSC 1611 at [168]-[171]. I do not accept the excuses Traiko offered for these under-estimates, and, as I have already noted, that reflects adversely on Traiko's credit. But the fact is that as a result of the production of further documents and the cross-examination, the Court now has reliable evidence of Traiko's income and the type of home he lives in. Although Traiko is better off than the impression which he sought to convey with his affidavit, his income is relatively small and his home is far from palatial. He may be better off than Vase but I see no reason to think that he is wealthy, and I do not think the Court should ignore his circumstances as actually established by the evidence.

Blagica's circumstances

Blagica is now 64 years old. She appears to be in reasonable health, apart from arthritis, and is still working. Her husband is 69 and is still working but expects to retire over the next 12 months. Blagica has two children called Alexander and Lidija, but the evidence contains no further details about them.
Blagica and her husband also own a house at Berala where they live. They own a small holding of shares in Insurance Australia Group Limited (approximately $3,000) and a 2010 model car. According to Blagica's latest affidavit, they have only $2,000 in a joint bank account. It emerged in cross-examination that Blagica's husband still owns the unit which he bought before he and Blagica were married.
In her affidavit of 10 July 2017, Blagica estimated her superannuation at $40,000 and her husband's at $42,000. In fact, their statements from 2016 disclosed superannuation of almost $70,000 for Blagica and approximately $61,000 for her husband.
Blagica continues to work as a factory hand. She says she earns approximately $600 per week. Based on that figure, Blagica's annual income after tax would be approximately $29,000. She says her husband earns $700 per week but once he retires will receive a pension of $500 per fortnight. Pre-retirement, his annual income after tax would be almost $33,000. Post-retirement, his annual income after tax would be approximately $24,500.

Entitlement to provision

Vase is an eligible person: FPA, s 6(1) (definition of "eligible person"). The first question is, therefore, whether the provision made for Vase in the will is "inadequate for the proper maintenance, education and advancement in life" of Vase: s 9(2). If this condition is satisfied, the Court may make an order for such provision as "ought" to be made for Vase's maintenance, education or advancement in life: s 7.
I have already rejected the suggestion that Vase's mental slowness was sufficient to make him dependent on the deceased. The merits of Vase's application must be considered on the footing that he is an independent adult. I referred to some of the relevant authorities in Kohari v NSW Trustee & Guardian [2017] NSWSC 1080 at [83]-[85]. Although this does not prevent the Court from making an order in Vase's favour, the Court's approach must be different from the approach the Court would take in the case of a dependent child or surviving spouse, and the focus of the Court's attention should be on "advancement" rather than "maintenance" or "education".
The argument for Vase focused essentially on his "needs". Counsel submitted that his circumstances were less favourable than those of his siblings. Each of his siblings has a house; each has a spouse and has a source of income. Vase, on the other hand, has nowhere else to live, significant health problems and limited earning capacity. Counsel submitted that this means the equal division in the will has left Vase without proper provision. Counsel submitted that proper provision would require a sum sufficient to purchase a one-bedroom unit with an additional amount to cover costs not recoverable from the estate and contingencies, which was said to amount to $650,000.
In my opinion, such an approach places too much emphasis on a comparison between the "needs" of the applicant and those of the other beneficiaries. The Court is allowed to take "needs" into account if the Court considers them relevant (FPA, s 9(3)(d)), but is not obliged to do so. In Vigolo v Bostin (2005) 221 CLR 191, a plaintiff who was already well-off failed in his application for further provision because he had no need for any assistance in providing a comfortable lifestyle for himself and his family. I accept that Vase is not in that position. But once that threshold is crossed, then Vase's "needs" are not necessarily determinative.
Whether a given provision is "proper" and, if it is not, what provision "ought" to be made, both involve value judgments. The judgment must be made in accordance with what a "wise and just rather than a fond and foolish" testator would have done, or, to use the more modern language, in accordance with "community standards". Such a value judgment may, and often will, involve judgments on the character or conduct of the parties. The fact of "need" may be less important than determining whose responsibility it is that the "need" has arisen.
Some in the community may believe that a testator, when faced with the choice of providing for a number of children whose financial circumstances are different, should provide for those children in accordance with their needs. But others may take a different view. They may consider that, at least in the absence of estrangement or serious misconduct, the appropriate course is to provide for each child equally. They may see the determination of what is "proper" provision as depending upon equality of opportunity rather than equality of outcome. They may think that this approach is supported by the consideration that the testator cannot be expected to know the future, and that an unequal distribution may prove particularly unfair if, after the testator's death, a hitherto less successful child receives a financial windfall or a hitherto more successful child suffers an unexpected financial reverse.
There is no way for this Court to determine which of these two schools of thought, if either, predominates in the community. In my opinion, it is not necessary to do so. The Court should recognise both of them as being legitimate approaches by testators which should not be disturbed simply because the Court might prefer one approach over the other.
This is not inconsistent with the High Court decision in Cooper v Dungan (1976) 9 ALR 93. In that case, no provision was made for the plaintiff in her father's will and it was determined that some provision, in the circumstances, was necessary. The trial judge altered the provisions in the will so as to give the plaintiff a distribution equal to that of her siblings, who had a stronger "moral" claim for provision. This was overturned by the High Court. The decision shows that where the distribution in the will is unequal, "proper" provision for maintenance, education and advancement will not necessarily require equality; but it does not establish that where the distribution in the will is equal, the Court is obliged to alter the distribution on account of unequal "needs" or any other factor.
I accept that Vase's needs are greater than those of Traiko and Blagica. But in the present case, I think that there was ample justification for the equal division adopted by the deceased. The evidence does not establish that Vase contributed more than his siblings to the assets of the estate (indeed, he may have contributed somewhat less). Each of Traiko, Blagica and Vase appears to have maintained a close and loving relationship with the deceased. Vase may not have received much, if any, financial assistance from his parents when he was young, but Traiko and Blagica do not seem to have been treated any more favourably. Vase may have done somewhat more for the deceased than his siblings over the last few years of his father's life and then over the final years of the deceased's life. However, he was living rent-free at the Berala property, he did receive a carer's pension over some of the period, and since the deceased's death he has had the property to himself, rent-free, for more than 11 years. The evidence does not establish that he undertook liabilities or passed up valuable commercial opportunities at the deceased's request. So far as appears, Vase's relative lack of financial success is a consequence of his own misfortunes and, perhaps, his own reaction to them. His financial position is not the responsibility of the deceased or of his siblings. It would also have been a legitimate consideration for the deceased, in providing benefits for Traiko and Blagica, that those benefits might be expected to flow on to their children, the deceased's grandchildren. And while both Traiko and Blagica are better off than Vase, they are not particularly well off, and they are certainly not beyond the possibility of some financial reverse affecting them in the future.
It must also be recognised that the Court is rarely in as good a position as the testator to assess and weigh the relevant factors. Thus, unless it appears that the testator was labouring under some unreasonable state of mind, or the circumstances which existed at the time of the hearing were not foreseeable by the testator, the Court should be reluctant to depart from an apparently reasonable judgment by the testator: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 284-285 [127]; Stott v Cook (1960) 33 ALJR 447 at 453-454.
This principle is important in the present case. The factors upon which Vase relies in seeking additional provision were all present, and would have been known to the deceased, in October 2002 when she made her will. There is no evidence of any significant change in Vase's circumstances between October 2002 and the date of the deceased's death in December 2005, and the position is broadly unchanged today. Although there is no evidence of any prior will by the deceased, there is nothing to suggest that the will she made in October 2002 represented a change away from some more favourable testamentary provision for Vase.
In my opinion, the fact that Vase was aware of the terms of the deceased's will and did not protest is of particular significance. If Vase had legitimate complaints, the deceased was deprived of the opportunity of considering them and either modifying her testamentary dispositions or providing a more formal explanation of why she considered them appropriate. There is every reason for the Court to decline the invitation to consider such questions for the first time at a trial almost 15 years later.
In my view, Vase has failed to demonstrate that the provision for him was not "proper" in the relevant sense and, accordingly, if I had reached the merits of Vase's application for provision, I would have rejected it.

Conclusions and orders

For these reasons, I have concluded that: (1) Vase's claim for equitable proprietary relief fails; (2) the Court should refuse Vase's application for an extension of time to make his family provision application; (3) if such an extension had been granted, the application would in any event have been refused on its merits.
I will hear the parties, if necessary, on costs.
The orders of the Court are:
Proceedings dismissed.
Reserve liberty to each party to apply to the Court with respect to costs, such liberty to apply to be exercised within 28 days of today's date.

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 2017

Family Provision Act 1982(NSW)

At a glance

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