: G.E. Dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013)
Category: Principal judgment
Parties: Radunka Rakic (First Plaintiff/ First Cross-Defendant)
Tanja Rakic (Second Plaintiff/ Second Cross-Defendant)
Ljiljana Bogic (Defendant/ Cross-Claimant)
Representation: Counsel:
Mr J Bartos (Plaintiffs/ Cross-Defendants)
[2]
Solicitors:
Jordan's Law Practice (Plaintiffs/ Cross-Defendants)
No appearance for the Defendant/ Cross-Claimant
File Number(s): 2015/183581
Publication restriction: Nil
[3]
Judgment
These proceedings concern the Estate of the late Kata Sutic ("the Estate"). Ms Kata Sutic ("Kata") died on 24 April 2013 in Serbia. Kata was born in 1940 in the part of former Yugoslavia that is now Serbia and lived in Australia between 1975 and 2005, before returning permanently to Serbia in 2005. Kata's husband predeceased her and she had no children.
The following persons have claimed to have an interest in the Estate:
1. Ms Radunka Rakic ("Radunka");
2. Ms Kana Andjelkovic ("Kana");
3. Ms Tanja Rakic ("Tanja"); and
4. Ms Ljiljana Bogic ("Ljiljana").
Radunka and Kana are sisters of Kata and are her closest surviving relatives.
Radunka and Tanja are the Plaintiffs/ Cross Defendants in the proceedings and were represented at the hearing by Mr J Bartos of Counsel, instructed by Jordan's Law Practice. Radunka and Tanja have also engaged a Serbian Lawyer, Ms Dara Cekerevac, (to represent them in Serbia) and have filed affidavits of Ms Cekerevac in these proceedings. Ljiljana is the only remaining Defendant (for reasons which will become apparent) and she is also the Cross Claimant. Ljiljana has previously been represented in the proceedings first by Mr Denis Fitzpatrick and then by Ms Nedeljka Borak, but both have filed Notices of Ceasing to Act - Ms Borak in December 2020.
The Plaintiffs seek by a Notice of Motion dated 10 March 2021 dismissal of Ljiljana's Amended Cross Claim for want of prosecution pursuant to r 12.7 of the Uniform Civil Procedure Rules (2005) ("UCPR"), and summary judgment on their Amended Statement of Claim ("ASTOCL") pursuant, I infer, to r 13.1 of the UCPR, and ancillary orders.
The Plaintiffs, as Kata's sisters and closest surviving relatives, are entitled to her intestate estate pursuant to s 129 of the Succession Act 2006 (NSW) ("Succession Act"), if it be established that Kata did not leave a will dealing with her assets in Australia.
Ljiljana and Tanja are cousins and are granddaughters of Radunka and grandnieces of Kata and both are citizens of Serbia. Tanja alleges she looked after Kata from when she was in Year 8 at school until she went off to study medicine at university, and then continued to have a close relationship to Kata and to assist when she could (including on weekends and during the holidays, and she claims Kata lived with her in Belgrade for a period of four months following a hospitalisation): see her affidavit of 11 December 2021 (at Court Book ("CB") 350-358. Volumes 1 and 2 of the Court Book were made Exhibits A1 and A2 at the hearing, but I shall continue refer to the Court Book as CB in these reasons). Ljiljana, who Tanja asserts had previously not had a relationship with Kata, came to live with her and look after her once Tanja started university. From this time onwards Tanja alleges they both assisted with Kata's care, though Ljiljana was the only one paid (by Tanja's family) for the work undertaken. Tanja's version of events is that Ljiljana isolated Kata from the rest of her family and with the assistance of her de facto partner, Mr Radoslav Maksimovic, and took advantage of her. Ljiljana's version of events is that she took good care of Kata, stepping in after Tanja and Tanja's family failed to provide an adequate level of care.
Ljiljana is a resident of Serbia and does not speak English (see CB 710). Ljiljana is, as I have mentioned, currently unrepresented. Ljiljana did not appear at the hearing on 21 June 2021, nor did Ljiljana contact the Court or engage anyone to appear on her behalf. Ljiljana was provided with the audio-visual link details for the hearing by email by my Associate on 16 June 2021.
Kana is not a party to the proceedings. By her affidavit of 22 January 2021 (at CB 315) she gives evidence that an affidavit dated September 2019 (CB 324-332) and put forward by Ljiljana in support of her case was not a document which she signed knowing it to be an affidavit or knowing its contents. Kana claims she was misled into signing the document by Mr Maksimovic (Ljiljana's de facto husband). Kana opposes Ljiljana's claim: CB 318-319.
Tanja by seeking, jointly with Radunka, the orders that she does accepts that only Radunka and Kana will receive the benefits of what is left of Kata's Australian Estate.
The assets of Kata in Australia consisted of:
1. 11 York Street, Glebe, NSW ("the Glebe Property"). There were attempts by Ljiljana to sell the Glebe Property in November 2012 to February 2013 (see CB 565-567), and again in July 2014 (see CB 693-694). The Glebe Property was sold in September 2018. Mr David Jackson, special administrator, currently holds $1,104,240.61 being the balance of the proceeds of the sale of the Glebe Property: see T2.18. There are amounts owing to Mr Jackson of approximately $15,000 (see T26) and he estimates that the total costs of finalising the Estate would be $20K (including the $15K for his past unbilled work): see T26.21-36.
2. 7 Sedgmen Crescent, Shalvey ("the Shalvey Property"). The Shalvey Property was sold in June 2017 for $530,000: see the ASTOCL at [30] at CB 96.
3. Two Commonwealth Bank of Australia ("CBA") deposits totalling approximately $74,000.
There is, or at least was, property owned by Kata in Paraćin in Serbia. There have been significant events in Serbia in relation to Kata's Estate which I shall detail below.
There are a number of key wills and agreements (or purported wills and agreements) relevant to the matter, which I set out below:
1. In 2001 Kata made a will in NSW in favour of Tanja, bequeathing her the entire Estate ("the 2001 Will"). Whether the 2001 Will was validly revoked in 2010 is the subject of proceedings before the Serbian Courts. Tanja does not seek to propound that will in these proceedings.
2. Kata and Ljiljana entered into a Lifelong Maintenance Agreement in September 2010 ("the Lifelong Maintenance Agreement"), pursuant to which Kata, in consideration for lifelong care and maintenance, agreed to leave Ljiljana property in Serbia, the Shalvey Property, and the right to the rent from the Glebe Property for one year after her death. There is also in existence what appears to be another version of this document ("the Second Version of the LMA") which left the Glebe Property to Ljiljana outright. Mr Vladimir Stefanovic as attorney for Ljiljana applied for Letters of Administration in August 2015 based on the Second Version of the LMA: see the affidavit of Mr Stefanovic of 20 August 2015 at Annexure C and D a copy of the Second Version of the LMA.
3. There is another document which appears to be an informal and undated will which was allegedly made in Serbia in October 2011 ("the 2011 Will"). The existence of the 2011 Will was only revealed to the Plaintiffs by Ljiljana in July 2018, some five years after Kata's death in 2013. The 2011 Will on its face bequeathed to Ljiljana the Glebe Property.
4. In connection with the 2011 Will, the Plaintiffs rely on the fact that:
1. the 2011 Will was not presented before the Probate Court in Serbia during the 2013 Serbian probate proceedings and as such is regarded as invalid under Serbian law;
2. Ljiljana in July 2013 did not assert the existence of the 2011 Will; and
3. the 2011 Will was not presented to this Court on either occasion when Letters of Administration were granted to agents of Ljiljana based on a forged document (i.e. the Second Version of the LMA).
1. The Plaintiffs have filed an affidavit in this Court from their Serbian solicitor, Ms Cekerevac of 5 June 2020 (at CB 490-538). Ms Cekerevac at [39]-[40] says the first time she saw the document was in August 2018, and that the 2011 Will "does not comply with the formal requirements of the Serbian law" for a number of reasons, including that it is undated, and does not identify the witnesses (see CB 496). She further says that Ljiljana did not present the document to the Court in Serbia by the requisite time and has thereby given up any right to rely on the 2011 Will in any further proceedings in Serbia: see CB 493-4. There is some dispute as to the where the original of the 2011 Will is held, and whether the original or a photocopy was brought from Serbia. Ljiljana claims that the document she gave to Mr Fitzpatrick was a copy not an original, and that is the document which was provided to Ms Borak and then to the forensic examiner Ms Melanie Holt. Ms Holt found (at CB 385) that the document contained original inked signatures which made this document an original: see [14(19)] below.
2. Ljiljana gave testimony in a criminal investigation in Serbia (instigated by Tanja's brother) that the Glebe Property was left to her by an oral will made in 2011 or 2012: see [45] of the affidavit of Ms Cekerevac of 5 June 2020 at CB 497, and see a translated version of Ljiljana's testimony at CB 530. Regard also needs to be had to the "Defendant Examination Records" made on 15 July 2013 (at CB 520) in which Ljiljana is recorded as having said:
"As I said before, I had a Lifetime Support Agreement with her, and with that contract she left me a smaller part of the property and there is still a lot of property, but since I am in bad relations with the heirs, I couldn't even explain to them what else was left of the property. I do not ask for anything from the property that is not covered by the contract and I have no desire for that property."
I take the words "that property" to be a reference to the Glebe Property.
1. In September 2012 there was an amendment to the Lifelong Maintenance Agreement providing that Ljiljana was to receive Kata's property in Serbia: see CB 686-687. The authenticity of that amendment is not in question.
The following is an abbreviated history of the litigation in this Court since 2015:
1. On 21 July 2014 Ljiljana appointed Mr Stefanovic as her attorney under a Power of Attorney: see CB 695-700. On 18 July 2014, Ljiljana and Mr Stefanovic entered into a contract under which Mr Stefanovic agreed to sell "real estate property in Sydney" belonging to Ljiljana: see CB 693-694. Mr Stefanovic was to receive 25% of the total sale price of the property under the contract.
2. On 14 March 2017 Letters of Administration were granted by this Court to Mr Stefanovic as attorney for Ljiljana: see CB 285. The Second Version of the LMA was annexed and the Inventory of Assets also attached included the Shalvey Property, the Glebe Property, and the two CBA deposits totalling approximately $74,000: see CB 289 and 290.
3. On 30 June 2017 Mr Fitzpatrick as Ljiljana's solicitor filed a Statement of Claim seeking revocation of the grant to Mr Stefanovic of the Letters of Administration based on various matters, but not based on any suggestion that the Second Version of the LMA was a forgery. The 2011 Will was not referred to in the Statement of Claim and it was not disclosed to the Court in 2017, nor was the fact that proceedings concerning Kata's Estate had been brought in Serbia.
4. On 30 June 2017 Slattery J made an ex parte order restraining the sale of the Glebe Property. The matter had been urgently listed before his Honour as the Duty Judge by Ljiljana's then legal representatives (Mr Fitzpatrick of Fitzpatrick Solicitors Pty Ltd) to stop Mr Stefanovic from selling the Glebe Property.
5. Ljiljana appointed Mr Milutin Matic as her attorney on 17 July 2017.
6. In October 2017 proceedings between Ljiljana and Mr Stefanovic settled. The settlement included Mr Stefanovic agreeing that he would step down as administrator and that Mr Matic would replace him.
7. On 24 October 2017 Ljiljana was registered as the proprietor of the Glebe Property.
8. On 9 November 2017 Lindsay J made orders revoking the grant made on 14 March 2017 and granting Letters of Administration to Mr Matic (as attorney for the Ljiljana) "limited until [Ljiljana] comes in and obtains a grant."
9. On 9 November 2017 Lindsay J made the orders revoking the grant of Letters of Administration to Mr Stefanovic, and granting to Mr Matic "limited until the plaintiff comes in and obtains a grant" and, on 23 March 2018 Registrar L Brown effected the orders made by Slattery J. The 23 March 2018 orders state:
"Revocation in accordance with orders of Lindsay J on 9 November 2017
Letters of administration in accordance with the orders of the Court on 9 November 2017. Power of attorney for Ljiljana Bogic"
1. In connection with the replacement of Mr Stefanovic with Mr Matic it is clear that Ljiljana was continuing to place reliance on the Second Version of the LMA: see the Statement of Claim filed on behalf of Ljiljana on 30 June 2017 by Mr Fitzpatrick and in particular paragraphs 12 and 13, and the Court was not informed of the existence of any 2011 Will, that there had been proceedings in Serbia, or that there were two versions of the LMA in existence and that the Second Version of the LMA was a forgery, or that Ljiljana was not the sole surviving relative of Kata. There is also the issue of an affidavit purportedly sworn by Ljiljana on 27 April 2016, which is found at CB 701-708, which it seems likely was relied on by Mr Stefanovic in connection with the application for Letters of Administration granted in 2017, and which Ljiljana has in more recent times claimed is a forgery.
2. In connection with the application before Slattery J on 30 June 2017, the transcript (at pages 73-81 of the annexures to Mr Fitzpatrick's affidavit of 6 November 2018) shows that his Honour observed that the document to which Mr R E Quickenden, Counsel for Ljiljana, had taken him to in support of Ljiljana's application to freeze the sale of the Glebe Property did not give Ljiljana a sufficient interest: see T4.6-40. The matter was adjourned, Mr Quickenden took instructions, and on resumption there was the following exchange (at T4.47-5.23):
"QUICKENDEN: Apologies, your Honour, I was just raising that issue that your Honour raised.
HIS HONOUR: You see it doesn't seem to me to be.
QUICKENDEN: Yes. If your Honour looks - and I've probably referred your Honour to the wrong page - if your Honour looks at page 37 in the right hand at the top there, that seems to be a certified copy of the -
HIS HONOUR: Page 37 did you say?
QUICKENDEN: Yes, page 37, top right.
HIS HONOUR: Yes.
QUICKENDEN: It refers to the Glebe property there. If your Honour looks at about point six:
"The contracting party, the maintenance receiver, also leaves on the day of her death to the contracting party, the maintenance provider, et cetera, 11 York Street, Glebe, New South Wales, and the house at the address 7 Sedgman, Crescent, Shalvey."
His Honour: I see.
QUICKENDEN: Your Honour's quite right, it wasn't clear from the other document."
It is clear that the first document to which Slattery J was referring was the genuine Lifelong Maintenance Agreement and that the second document to which his Honour was referred by Mr Quickenden was the Second Version of the LMA. Thus both versions of the LMA were in the hands of Ljiljana and her solicitors (Mr Fitzpatrick) as at June 2017. Mr Fitzpatrick in his affidavit of 6 November 2018 accepts that he did have both versions of the LMA at that time. Mr Fitzpatrick says that when Slattery J raised the issue of entitlement he sought instructions from Mr Matic who was unable to explain why there were two versions of the LMA: see paragraphs 38-40 of Mr Fitzpatrick's affidavit. That was not what his Honour was told, and Mr Fitzpatrick's affidavit advances no adequate explanation for what occurred in Court after the short adjournment.
1. In about July 2018 Tanja and Radunka became aware of the proceedings in NSW. By this time the Shalvey Property had already been sold and its proceeds, together with the CBA deposits and money from rent, had been distributed to Ljiljana after payments to Mr Stefanovic and legal fees.
2. On 22 August 2018 proceedings were commenced by Radunka and Tanja against Ljiljana and Mr Matic to set aside the Letters of Administration and to appoint a provisional administrator. Ljiljana resisted the setting aside of the Letters of Administration: see CB 582 at paragraphs 16-20, and see paragraphs 38-40 of Mr Fitzpatrick's affidavit of 6 November 2018 in which Mr Fitzpatrick states that he became aware in June 2017 that the Letters of Appointment were based on a doctored document, i.e. the Second Version of the LMA. He does not appear however, to have taken any steps to bring this to the attention of the Court prior to 6 November 2018 and it was only in September 2019 that Ljiljana, through her representation, accepted that the Letters of Administration had to be revoked.
3. On 10 April 2019 the Plaintiffs filed a Notice of Motion for summary judgment to obtain revocation of the Letters of Appointment.
4. On 30 September 2019 the Notice of Motion was listed before Lindsay J. Ljiljana and Mr Matic conceded that the Letters of Administration had to be revoked, as they were based on a forged document (i.e. the Second Version of the LMA): see CB 295-296. Mr Jackson was appointed as special administrator and he holds the remaining proceeds of the sale of the Glebe Property as administrator. Given his Honour's orders of 30 September 2019 the Statement of Claim was exhausted save for an order that costs were reserved. Mr Matic ceased to be a defendant leaving Ljiljana as the sole remaining defendant.
5. In October 2019 Ljiljana filed an Amended Cross Claim seeking Letters of Administration in relation to the 2011 Will and in the alternative an order for a provision under s 59 of the Succession Act.
6. Ljiljana changed solicitors in early 2020: a Notice of Ceasing to Act was filed 10 February 2020 by Mr Fitzpatrick of Fitzpatrick Solicitors Pty Ltd for Ljiljana. Ljiljana was then represented by Ms Borak of Borak & Co Solicitors, who filed a Notice of Appointment of Solicitor on 14 February 2020.
7. Whilst she had a solicitor acting for her, the affidavits of Ljiljana and of Mr Maksimovic and Mr Radivojevic Marko all of 19 July 2019 were filed and served: see CB 709-730. Annexed to these affidavits is a copy of the 2011 Will and Mr Marko and Mr Maksimovic, whose signatures are on that document, depose to being witnesses to execution of the 2011 Will by Kata, and Ljiljana claims to also have been present at the execution. Mr Maksimovic does not reveal in the affidavit that he is the de facto partner of Ljiljana and Ljiljana in her affidavit at paragraph 12 describes him as a workman doing work at Kata's house at the time. Mr Maksimovic is the de facto partner of Ljiljana and has been for some time: see paragraphs 55-66 of Tanja's affidavit of 11 December 2021 at CB 356-357. As I have mentioned earlier Mr Maksimovic is described by Tanja as having assisted Ljiljana in blocking access to Kata whilst she was alive.
8. Ms Holt, forensic document examiner, who was retained by both the Plaintiffs and Ljiljana, has prepared two reports in the proceedings.
1. The first joint report is dated 11 May 2020 (at CB 366-398). Ms Holt was asked to examine two documents provided to her to determine whether the documents were original documents or photocopies. The two documents were, namely, the document titled "UGOVOR O DOŽIVOTNOM IZDRŽAVANJU dated 8.9.2010" (the Life Maintenance Agreement) and another titled "ZAVEŠTANJE (undated)", which is the 2011 Will. Ms Holt concluded that both documents contained "original inked signatures which, on their own, makes these documents originals (as opposed to some kind of reproduction)": CB 385. Ms Holt advised that at that stage she had not undertaken any signature comparisons, so could not comment on the genuineness or otherwise of the signatures.
2. The second joint report is dated 1 July 2020 (at CB 399-489). Ms Holt was jointly asked by the parties to forensically examine and determine the likelihood that the signature on the 2011 Will (the document titled "ZAVEŠTANJE") is that of Kata. Ms Holt concluded that there was moderate support for the hypotheses that someone else other than Kata signed the 2011 Will.
1. There were in "lengthy negotiations" between the parties to settle the proceedings following receipt of Ms Holt's report, however negotiations were unsuccessful.
2. Since Ms Borak filed the Notice of Ceasing to Act, no further affidavits have been filed by Ljiljana, nor has there been any appearance by her on her behalf at the directions hearings on 18 December 2020, 22 February 2021, 6 April 2021 and 13 April 2021. It seems highly likely that Ljiljana is currently in Serbia. No further solicitor has ever been appointed by Ljiljana to represent her in the proceedings, and the Serbian solicitor, Mr Mihajlo Kostic, whose email address was given by Ms Borak as the contact for Ljiljana in the Notice of Ceasing to Act has made no contact with the Court or the Plaintiffs' solicitors, other than, arguably, by the rather strange email discussed at [24] below.
3. On 30 October 2020, Hallen J directed that each party was to:
1. serve any evidence in chief or evidence in reply to affidavits served prior to 30 October 2020 by 4:00pm on Monday, 30 November 2020; and
2. serve any evidence in reply by 4:00pm on 14 December 2020.
1. Hallen J's orders of 18 December 2020 were in the following terms:
"THE COURT:
1. Notes that the Plaintiff has wrongly filed a document on 15 December 2020 headed 'Second Cross-Claim Statement of Cross-Claim' that documents is not to be relied on.
2. Grants leave to the Plaintiff to file and serve an amended Statement of Claim by 4:00 p.m. on 5 February 2021.
3. Directs that any affidavit of service of the amended Statement of Claim on the Defendant/Cross-Claimant, Ljiljana Bogic, be filed and served by 10 February 2021.
4. Directs that the Plaintiff file an index of affidavits and pleadings upon which it is intended to rely in relation to the application for a grant of letters of administration to be made to the interim administrator by 4:00 p.m. on 10 February 2021.
5. Directs the interim administrator to file an affidavit by 4:00 p.m. on 5 February 2021 setting out the nature and value of Kata's estate.
6. Stands the matter over for further directions before the Succession List Judge on Monday, 22 February 2021."
Ljiljana did not appear before his Honour on 22 February 2021.
1. On 23 December 2020 the Plaintiffs filed the ASTOCL seeking, inter alia, a declaration that the two surviving sisters (Radunka and Kana) are, pursuant to s 129 of the Succession Act, entitled to the whole of the intestate Estate. The ASTOCL was served by email to Ljiljana on 15 January 2021 (CB 156) and re-served by return registered post on Ljiljana on 17 March 2021: see CB 104-105. Ljiljana has not filed any defence to the ASTOCL.
2. On 10 March 2021 the Plaintiffs filed the present Notice of Motion (at CB 2-4) seeking a dismissal of the Amended Cross Claim for want of prosecution, summary judgment on the ASTOCL and this Notice of Motion was served on Ljiljana by return registered post on 17 March 2021: see CB 104-105.
3. On 13 April 2021, Ward CJ in Eq listed the Plaintiffs' Notice of Motion for hearing before me on 21 June 2021. Notice of the hearing date was given by the Plaintiffs' solicitor on 22 April 2021: see the affidavit of Antony Sutton dated 28 May 2021 at CB 233 and see CB 237. A reminder letter was sent on 2 June 2021 to both Ljiljana by email and to Mr Kostic: see the affidavit of Ms Milena Mijatovich, solicitor for the Plaintiffs, dated 17 June 2021. Although the hearing was a live hearing, an audio-visual link was sent to Ljiljana by email by my Associate on 16 June 2021 and it was open for Ljiljana to join the hearing by audio-visual link on 21 June 2021, either herself or by her duly appointed representative.
The following is an abbreviated history of litigation in connection with Kata in Serbia:
1. On 14 December 2010 Kata declared before the Local Court in Paraćin that she wished to revoke the 2001 Will because she had "made an agreement with my grand-daughter [Ljiljana] from Svojnova regarding my lifelong care": see the Transcript for Paraćin Local Court proceedings 1.R.3.no:862/10: CB 277-278. Ljiljana is not in fact Kata's granddaughter, but rather is her grandniece (as is Tanja).
2. In April 2013 Radunka commenced proceedings in the Local Court in Paraćin against Kata and Ljiljana to set aside the Lifelong Maintenance Agreement principally on the grounds of Kata's mental incapacity (proceedings 1P-1463/13): see the affidavit of Ms Cekerevac of 5 June 2020 at CB 495, and see CB 741. The Court in Serbia determined in September 2018 that Kata did have the requisite capacity and that decision was confirmed on appeal in June 2019. An appeal against the decision of the Court of Appeal was made to the Constitutional Court of the Republic of Serbia in Belgrade (the highest Court in Serbia). This appeal has not yet been heard and if Radunka is successful then the matter would have to be remitted to the Basic Court in Paraćin for a new hearing.
3. In June 2013 Saša Rakić ("Saša"), Tanja's brother and Kata's grandnephew, requested the Basic Court in Paraćin to undertake an investigation of Ljiljana in relation to the attempted sale of the Glebe Property. Those proceedings ended, I was informed, when the Serbian Court determined that Saša had no standing to instigate them: see T22.26-28.
4. In September 2013 the Local Court in Paraćin found that Radunka and Kana were the rightful heirs of Kata (proceedings O-695/13): see CB 562 and the affidavit of Ms Cekerevac of 5 June 2020 at CB 494, CB 511-513, and CB 515-517. The probate proceedings in Serbia were, however, then stayed pending the determination of the validity of the Lifelong Maintenance Agreement. Radunka disputed the validity of the document (Kana did not).
5. In February 2015 Tanja commenced proceedings in the Local Court in Paraćin against Radunka, Kana and Ljiljana seeking a declaration that the 2010 revocation of the 2001 Will was invalid principally on the grounds of Kata's mental incapacity (proceedings 2P-216/15): see the affidavit of Ms Cekerevac of 5 June 2020 at CB 496. Those proceedings are on hold pending the final determination of Radunka's proceedings. Tanja, I was informed, accepts that if Radunka is unsuccessful in relation to Kata's mental capacity in connection with the Lifelong Maintenance Agreement that will be determinative of the issue of revocation of the 2001 Will.
The Plaintiffs seek to have Ljiljana's proceedings on her Cross Claim dismissed and to obtain summary judgment on their ASTOCL. The Plaintiffs, for the purpose of these proceedings, do not seek to contest either the validity of the Lifelong Maintenance Agreement or the revocation of the 2001 Will, the result of which being that Ljiljana would be entitled to the proceeds of sale of the Shalvey Property and one year's rent from the Glebe Property. On behalf of the Estate the Plaintiffs also seek to recover an amount for rent beyond that specified in the Lifelong Maintenance Agreement and other funds obtained by Ljiljana which Ljiljana was not, they assert, entitled.
[4]
Dismissal of Ljiljana's Proceedings on her Cross Claim
The Plaintiffs seek to have the proceedings on the Amended Cross Claim dismissed pursuant to 12.7 of the UCPR, which provides:
"12.7 Dismissal of proceedings etc for want of due despatch
(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.
(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit."
If the Amended Cross Claim is dismissed, there being no defence to the ASTOCL, the Plaintiffs would, barring some obvious defect in their claim, be entitled to the relief sought by them.
The Plaintiffs submit the essential criterion for the exercise of the power of the Court is whether or not, in all the circumstances, justice requires that the proceedings should be dismissed or the defence struck out. On this point, Mr Bartos, in the Plaintiffs' written submissions of 8 June 2021 ("PWS"), relied on Witten v Lombard Australia Ltd [1968] 2 NSWR 529, Stollznow v Calvert [1980] 2 NSWLR 749, Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491 and Hartigan v International Krishna Consciousness Inc [1999] NSWSC 57. Some of the factors that may be considered have been set out by Simpson J (as her Honour then was) in Hoser v Hartcher [1999] NSWSC 527, which Mr Bartos summarised at paragraph 18 of the PWS:
"(1) The ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed.
(2) The discretion should be exercised only in a clear case where it is manifestly warranted, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion.
(3) Any explanation offered by the plaintiff for the delay in proceeding must be considered.
(4) Personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant.
(5) Delay by the defendant in bringing the application.
(6) Delay between the date the cause of action arose and the commencement of the proceedings.
(7) Prejudice to the defendant.
(8) Prejudice to a defendant caused by delay versus prejudice to a plaintiff deprived of an otherwise valid claim.
(9) What the defendant has (or has not) done by way of preparation for trial.
(10) The plaintiff's prospects of success.
(11) Strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics."
Mr Bartos refers also to Morris-Harris-Keith v Hughes [2019] NSWSC 665 in which Hoser is approved and in which Davies J (at [33]) pointed out that:
"[The] stringency of the principle that a court should be reluctant to exercise the power of summary dismissal without a hearing on the merits has been diminished by reason of ss 56-60 of the Civil Procedure Act: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17]."
The Plaintiffs submit the cross claim should be dismissed because:
1. Ljiljana has taken no part in the proceedings since the breakdown of negotiations following receipt of Ms Holt's report in July 2020 and the Notice of Intention of Ceasing to Act filed by her solicitor on 18 November 2020. The Plaintiffs submit she has effectively abandoned her claim;
2. there has been no delay by the Plaintiffs in bringing this application;
3. the Plaintiffs are prejudiced by Ljiljana's delay, noting that it is more than eight years since Kata's death, there is no indication that Ljiljana is willing to prosecute her cross claim, and that Radunka and Kana are respectively 82 and 77 years old;
4. the Plaintiffs have filed all their evidence in respect of the cross claim;
5. the facts, as they stand, "point overwhelmingly to the lack of credibility of the claim" by Ljiljana: see paragraph 26 of the PWS; and
6. Ljiljana's prospects of succeeding on the Amended Cross Claim are "negligible": see paragraph 30 of the PWS;
The Plaintiffs have previously served Ljiljana with a copy of the ASTOCL and advised her of the orders made by the Court:
1. Ms Mijatovich emailed Ljiljana on 15 January 2021 (CB 156) attaching a copy of the ASTOCL, a sealed copy of the Court Orders of 18 December 2020 made by his Honour Hallen J, and the affidavits of Radunka and Tania filed 15 December 2020.
2. On 27 January 2021 Ms Cekerevac arranged to serve Ljiljana by return registered post with a copy of the ASTOCL, a sealed copy of the Court Orders of 18 December 2020, and the affidavits of Radunka and Tania filed 15 December 2020 (see CB 165).
3. The Plaintiffs have filed evidence that Ljiljana was served on 18 March 2021 with a copy of the ASTOCL, a copy of the Notice of Motion filed 10 March 2021, and a copy of the affidavit of Ms Mijatovich filed 10 March 2021. Ms Cekerevac, in her affidavit of 30 March 2021 at paragraph 10 (CB 105), deposes that service by return registered post was effected and that this is "the usual and acceptable method of service used for Court matters in Serbia."
4. I have referred earlier to notification of the listing being sent to Ljiljana by my Associate on 16 June 2021.
Ljiljana did not appear at the hearing on 21 June 2021 and she:
1. is currently unrepresented, and has not engaged any local legal representation since Ms Borak, Ljiljana's then solicitor, filed a Notice of Ceasing to Act on 7 December 2020. As I have noted earlier, Ljiljana does not speak English making the absence of representation even more significant;
2. has not appeared at (nor arranged for legal representation to appear on her behalf) at the directions hearings on 18 December 2020, 22 February 2021, 6 April 2021 or 13 April 2021 (see paragraph 6 of the PWS). On 6 April 2021 the Plaintiffs were directed by Hallen J to inform the Defendant that the matter had been adjourned to 13 April 2021 by no later than 7 April 2021. Mr Sutton, solicitor for the Plaintiffs, complied with these orders; he emailed Ljiljana advising her that the matter would be listed on 13 April 2021 and that on this occasion a hearing date would be allocated: see CB 236. Ljiljana did not appear before the Court by audio-visual link on 13 April 2021; and
3. no further evidence has been filed on behalf of Ljiljana in compliance with his Honour Hallen J's orders. Whilst failure to file further evidence is not of itself a default, Ljiljana has given no indication that she does not intend to file any further evidence in the proceedings and she has not responded to the Plaintiffs' Notice of Motion with such an assertion.
There was yet a further development in this sorry saga. On 11 March 2021, Ms Mijatovich received an email from one Mr Danijel Maksimovic ("Danijel"), who is the son of Ljiljana's de facto husband, Mr Radoslav Maksimovic. The email (see Ms Mijatovich's affidavit of 17 June 2021 at Annexure C) annexed a document in Serbo-Croatian described as being from Mr Kostic. Mr Kostic is a solicitor in Serbia and his email address was the address given for Ljiljana by Ms Borak when she ceased to act. There is nothing in the annexure to Danijel's email which confirms that the document was in fact written by Mr Kostic, and there are three reasons to suggest that it was not. First, it was not sent by Mr Kostic using his own email address. Second, if Mr Kostic was retained by Ljiljana it would be expected that he would have sent a communication either directly to the Court or more appropriately by utilising the services of an Australian lawyer. Finally, the document is not in a form that would be expected from a lawyer. I note too that this is not the first occasion in the history of this matter that someone has purported to be a solicitor acting on behalf of Ljiljana: see CB 574-571.
The attachment to the email from Danijel is of significance because it asserts that this Court has no jurisdiction to hear the matter, and it challenges the legitimacy of the forensic examination of the 2011 Will. Those challenges are remarkable given that:
1. it was Ljiljana's agents (Mr Stefanovic and Mr Matic) who sought Letters of Administration in this Court based on the Second Version of the LMA;
2. it was Ljiljana who by her lawyer Mr Fitzpatrick filed a Statement of Claim dated 30 June 2017 seeking revocation of the grant of Letters of Administration to Mr Stefanovic;
3. after the Letters of Administration were revoked, Ljiljana filed a Cross Claim in these proceedings seeking provision pursuant to s 59 of the Succession Act;
4. Ljiljana filed an Amended Cross Claim seeking Letters of Administration based on the 2011 Will; and
5. Ljiljana by her legal representative, Ms Borak, agreed to the examination of the 2011 Will by Ms Holt.
Mr Bartos submitted that the email sent by Danijel is evidence that Ljiljana has abandoned her Cross Claim since she asserts through Mr Kostic (or her de facto husband's son) that the Court has no jurisdiction.
The following matters are, in my view, of significance:
1. Kana passed away in April 2013, more than eight years ago.
2. Radunka is 82 years of age. Her sister Kana is 77 years of age.
3. Ljiljana has had two solicitors represent her in these proceedings who have ceased to act. The last solicitor filed a Notice of Ceasing to Act in December 2020. She has taken no part in the proceedings since November 2020.
4. Ljiljana sought and obtained Letters of Administration in this Court based on what she later accepted was a forged document, i.e. the Second Version of the LMA. Ljiljana claims that she was not a party to that deception. It is unclear how, if she was not involved, the Second Version of the LMA came into existence and into the hands of Mr Fitzpatrick and, as I have noted, Ljiljana had both versions by the time of her application in June 2017. In his affidavit of 6 November 2018 at paragraph 32, Mr Fitzpatrick asserts that he was instructed in 2017 by Ljiljana that she was entitled to both the Shalvey Property and the Glebe Property. There is also an affidavit (with appropriate endorsements of translation) purportedly of Ljiljana's dated 27 April 2016 (at CB 701-708, and see [14(10)] above) that supports the claim that she was actively involved in the deception and in which Ljiljana (purportedly) deposes to the fact that Kata "had no other relatives living at the time of her death" (see paragraph 13), but there is evidence that indicates that the affidavit was not interpreted by Ms Ivana Ivanovic, lawyer, as the document purportedly shows: see CB 573 and 577. Ms Ivanovic also stated that she had never signed a letter dated 27 April 2016 giving expert evidence concerning Serbian proceedings in relation to Life Maintenance Contracts: see CB 574-577. What is clear is that the administration of the Estate commenced, and was permitted by Ljiljana and her agents to continue until September 2019, on the basis of the Second Version of the LMA, i.e. the forged document.
5. Ljiljana sought to have the Glebe Property sold in 2012 and 2013 and again in July 2014 and in 2015 and did so on the basis of the Second Version of the LMA: see the affidavit of Mr Sutton of 30 May 2019 at paragraphs 10 to 13 at CB 542 and in particular CB 565-567 and see CB 693-694; see also Mr Fitzpatrick's affidavit of 6 November 2018 at paragraph 13.
6. I have referred to the fact that the joint forensic expert has concluded that there is moderate support for the contention that the 2011 Will is not genuine. There are a number of important facts which lend considerable support for the case that the 2011 Will is in fact a forgery:
1. The 2011 Will which Ljiljana propounds was first identified in connection with these proceedings in 2017 (at the earliest) and yet Ljiljana claims that she was present when the will was executed. Her agent, Mr Stefanovic in his affidavit of 20 August 2015, deposed that he believed that Kata did not leave a will or testamentary document other than the Second Version of the LMA: see paragraph 2. By her original cross claim (filed 14 December 2018), Ljiljana sought a provision under s 59 of the Succession Act and did not advance a case based on the 2011 Will.
2. Ljiljana did not put the 2011 Will forward in the probate proceedings in Serbia.
3. In criminal proceedings in Serbia, Ljiljana said that she makes no claim to what is not covered by the Lifelong Maintenance Agreement (see CB 520).
4. Ljiljana now relies on the Lifelong Maintenance Agreement and a variation dated 26 September 2012 which relevantly left the Lifelong Maintenance Agreement unaffected so far as the Glebe Property (and monies held by Kata) were concerned: see CB 686-692 and particularly CB 688, but in 2017 through her Statement of Claim against Mr Stefanovic she was relying on the Second Version of the LMA.
5. Ljiljana did not notify Radunka or Tanja of the 2011 Will until 25 June 2018 in a letter from Ljiljana's former solicitor Mr Fitzpatrick: see paragraph 42 of Mr Fitzpatrick's affidavit of 6 November 2018 and see CB 731-732.
1. The failure of Ljiljana to produce the 2011 Will at the Probate proceedings in Serbia not only affects the credibility of her case in the sense of impugning its genuineness but even if it were genuine, according to the evidence of Ms Cekerevac of 5 June 2020 (paragraphs 20-27 and 41-42) Ljiljana cannot rely on it anyway.
2. Ljiljana has offered no explanation for her failure to attend Court on 18 December 2020, 22 February 2021, 6 April 2021 and 13 April 2021 - all of which were by audio-visual link, or her failure to comply with orders made by the Court.
3. I have referred to the original cross claim of Ljiljana which sought a provision made in her favour pursuant to s 59 of the Succession Act, but which made no reference to the 2011 Will. She has filed no evidence in support of that claim, but in any event it would have a negligible prospect of success given that on the partial intestacy Radunka and Kana obtain the Glebe Property (now the proceeds of sale of that property) but Ljiljana will have received the Shalvey Property and one year of rent from the Glebe Property and a property in Paraćin, and because the history of this matter would be very relevant in determining whether any provision ought be made. Any monies which Ljiljana has received beyond her entitlement based on the Lifelong Maintenance Agreement would have to be repaid by her to the Estate.
4. I think that on all the evidence that Ljiljana has abandoned her claims, but the matters in (6), (7) and (9) above demonstrate that Ljiljana's claims, even if not abandoned, are weak and I take that into account in determining that her Cross Claim should be dismissed.
I am of the view that, based on the matters to which I have referred in [27] above, Ljiljana's Cross Claim should be dismissed.
[5]
Summary Judgment Application
I should note that this Court has jurisdiction to deal with the assets of a deceased person who did not reside in Australia, if the deceased had assets within the jurisdiction: s 40 of the Probate and Administration Act 1898 (NSW). I should also draw attention to r 11.4 of the UCPR and Schedule 6 to the UCPR which by (e) and (k) are relevant to jurisdiction - Ljiljana has submitted to the jurisdiction of this Court by filing a Defence on 16 October 2018, a Cross Claim on 14 December 2018, and an Amended Cross Claim on 4 October 2019.
I am also persuaded for the following reasons that there should be judgment for the Plaintiffs on their ASTOCL:
1. The evidence supports the conclusion that Kata did not leave a will dealing with the Glebe Property or the rent from that property from one year after her death, or her Australian bank account balance.
2. Under Australian law Radunka and Kana are entitled to those assets by reason of s 106 of the Succession Act, Kata having had no children, no spouse at the time of her death and Radunka and Kana being her surviving sisters.
3. The Serbian Court has, it appears, already come to the conclusion that Radunka and Kana are the rightful heirs of Kata: see [15(4)] above.
4. The evidence supports the claim that Ljiljana has obtained all of the funds from the Shalvey Property, the funds in the CBA accounts, the rent from the Glebe Property beyond the one year allocated to her by the Lifelong Maintenance Agreement, and has received amounts that did not involve a deduction for tax and capital gains: see the affidavit of Ljiljana filed on 16 August 2019, the affidavit of Mr Jackson of 18 February 2021 at CB 245 and the calculation of Mr Bartos in his submissions of 17 June 2021 by which he has endeavoured to calculate, on a generous basis to Ljiljana, the assessment to which she was entitled from the Glebe Property. He has used, for example, the gross sum for one years rent rather than the net sum.
There being no defence to the ASTOCL and the Cross Claim having been dismissed, it is appropriate to regard the allegations of fact asserted in the ASTOCL as having been made out: see Quality Bakers Australia Pty Ltd v Yassin Modern Bakery Pty Ltd t/as Yassin Lebanese Bakery [2007] NSWSC 804 Brereton J (as his Honour then was); and see also MacDonald v Australian Securities and Investments Commission (ASIC) [2007] NSWCA 304; (2007) 73 NSWLR 612 per Mason P at [49], with whom Giles JA agreed at [77], but in any event, there is evidence to support what is alleged by the Plaintiffs in the ASTOCL.
[6]
Rent and Other Funds
The Plaintiffs seek orders concerning not only intestacy, and the appointment of Mr Jackson, but they also a claim that Ljiljana has obtained funds out of the Estate to which she is not entitled, namely:
1. $73,260.00 that Kata had in her CBA deposit accounts;
2. rental from the Glebe Property for a period in excess of one year (as per the Lifelong Maintenance Agreement);
3. sale proceeds from the Shalvey Property which did not take into account the capital gains tax due in respect of that property; and
4. funds that were received did not take account of income tax that was payable by the Estate in respect of the Glebe Property and the Shalvey Property - see paragraph 8 of the affidavit of Mr Jackson of 18 February 2021.
Normally, where an executor or administrator has been appointed that person is the appropriate person to bring proceedings on behalf of the estate, and a beneficiary will not normally be permitted to do so: see Estate of Maria Zbrozek; Katarzyna (aka Kasia) Duszyk v Charles Emmanuel Morgan - Interim Administrator of the Estate of the late Maria Zbrozek [2020] NSWSC 1591 at [60]-[61]; and see Middleton v O'Neill (1943) 43 SR (NSW) 178 at 186 per Jordan CJ, with whom Davidson J agreed, and I was initially inclined to the view that the claim advanced against Ljiljana in respect of the funds that she has received over and above her entitlement by virtue of the Lifelong Maintenance Agreement ought not be adjudicated upon at this stage.
There are, however, exceptions to the general principle (see, e.g., Ramage v Waclaw (1988) 12 NSWLR 84) and, on reflection, I am of the view that this is a case in which the claims against Ljiljana for recovery of the funds which she has received and to which she was not entitled should be determined. My reasons are:
1. There has been no executor or administrator to pursue the claims against Ljiljana. The Letters of Administration given to Mr Matic (on behalf of Ljiljana) were revoked in December 2018 and he, as Ljiljana's agent, was not an appropriate person to bring proceedings against his principal. Although Mr Jackson was appointed to manage the remaining assets in NSW, his appointment was a very limited one.
2. Radunka as one of the two beneficiaries of Kata's NSW Estate as a result of the partial intestacy has a very significant interest in ensuring the recovery of those monies.
3. Neither Radunka nor Tanja seek an order that the repayment be made to themselves but rather, seek an order that the monies be repaid to the Estate.
4. Radunka and Tanja have presented the evidence that supports the claim that Ljiljana has obtained overpayment to herself of monies in the Estate. It would impose an unnecessary burden on the Estate to require Mr Jackson on his appointment to bring proceedings against Ljiljana. I should note that whether there is any utility in pursuing Ljiljana in Serbia to recover the funds which she will be ordered to repay is a very different question to whether this Court should order her to repay those monies. Mr Jackson has indicated that he would need to seek the views of Radunka and Kana in relation to any steps against Ljiljana in Serbia since they are the sole beneficiaries and any unrecovered expense incurred will reduce what they are to receive from the Estate. Consideration may also need to be given by Mr Jackson and by those advising the Plaintiffs as to whether Mr Stefanovic, Mr Matic and Mr Fitzpatrick have any liability to the Estate by reason of the steps taken (or not taken) by them in the course of these proceedings and the earlier administration of the Estate.
The Plaintiffs have established that Ljiljana has received monies to which she is not entitled and I am persuaded that Ljiljana should be ordered to repay to the Estate the amounts claimed by the Plaintiffs on behalf of the Estate, namely:
1. $73,260.00. The total of the two amounts held by Kata with the CBA in the List of Property attached to the Letters of Administration dated March 2017 at CB 290 adds up to $74,074.37, but I will use the lower figure of $73,260.00 claimed by the Plaintiffs;
2. $65,243.35 overpayment of rent from the Glebe Property based on a net rent of $22,914.00 for 12 months: see Mr Jackson's affidavit of 18 February 2021 at CB 244-266 and particularly CB 259, and a total payment to Ljiljana or her agents of $88,157.94 for the Glebe Property allowing a pro rata deduction of the Commission of the NSW Trustee & Guardian: see Mr Bartos' submissions of 17 June 2021, but noting that he has incorrectly treated the gross rental figure as the net rental figure; and
3. $65,204.59 being the capital gains tax calculated as referable to the Shalvey Property and not deducted from the monies paid to Ljiljana: see paragraph 8 of the affidavit of Mr Jackson of 18 February 2021.
The Plaintiffs seek an order that Mr Jackson be appointed as administrator of Kata's Estate. Mr Jackson is willing to take on that role and it is appropriate that he be appointed so that the Estate's affairs can be finalised.
[7]
Costs
The Plaintiffs seek an order that Ljiljana pay their costs of the proceedings and on an indemnity basis: see paragraph 2(e) of the Notice of Motion filed 10 March 2021. In my view, having been successful on their motion and on their claim, the Plaintiffs are entitled to an order that Ljiljana pay their costs.
An order for indemnity costs can be made where the conduct of the party against whom the order is sought has engaged in conduct (of the litigation) "deserving criticism" (see Re Smith; Ex parte Rundle (No 2) (1991) 6 WAR 299 per Malcolm CJ, and Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225) and as a means whereby the Court indicates its disapproval of the conduct of that party: see G.E. Dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) at [16.45]. In Colgate-Palmolive Sheppard J gave a non-exhaustive list of the type of conduct which can lead to an indemnity costs order.
I take the following matters into account in concluding that an order for indemnity costs in this case is appropriate:
1. Ljiljana obtained Letters of Administration in this Court based on a forged document. I do not need to determine whether the forgery was created by Ljiljana, it is enough that her agent advanced her application on the basis of a document which was later admitted to be forged. There was also advanced an affidavit purportedly of Kana that on Kana's evidence was not a genuine affidavit of hers.
2. Ljiljana has not only obtained Letters of Administration in favour of agents Mr Stefanovic and then Mr Matic, but she has, as a result of the orders she obtained, been able to receive the monies to which she was not entitled, as I have detailed above.
3. When in 2017 Ljiljana was seeking to have Mr Stefanovic removed as administrator she seemed, by her Statement of Claim, to assert that Mr Stefanovic was promoting the falsehood that Kata had no relatives other than Ljiljana: see paragraphs 27-30. By that Statement of Claim Ljiljana continued to place reliance on the Second Version of the LMA and indeed by her Statement of Claim she asserted that she was the owner of both the Glebe and Shalvey Properties: see paragraphs 13 and 18 and see paragraph 13 of the affidavit of Mr Fitzpatrick of 6 November 2018. The Court was not informed that there were other relatives other than Ljiljana or that there were proceedings on foot in Serbia in relation to Kata's Estate. Ljiljana supported the continuation of Letters of Administration (to Mr Matic in lieu of Mr Stefanovic) and resisted the Plaintiffs' attempts to have them revoked, notwithstanding that those had been obtained on the basis of the Second Version of the LMA, which was later agreed to be a forgery.
4. The 2011 Will which she has advanced in these proceedings was not the basis of her application for Probate in 2013 (see CB 494-495) and that document was not brought to the Serbian Court's attention. The handwriting expert has expressed a view which provides some support based on examination of the document that it is a forgery. For the reasons which I have mentioned in [27(6)] there are further reasons to doubt the authenticity of the 2011 Will and now Ljiljana has by her actions abandoned her claim based on that will.
5. Ljiljana has not contested the claim for indemnity costs.
[8]
Orders
I propose to make the following orders and declarations:
"The Court:
1. Orders that the Amended Statement of Cross Claim filed on 4 October 2019 be dismissed pursuant to Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) for want of prosecution with due despatch.
2. Declares that the First Plaintiff (Radunka Rakic) and Kana Andjelkovic are, pursuant to s 129 of the Succession Act 2006 (NSW), entitled to the whole of the intestate estate of the Late Kata Sutic ("Deceased") located in Australian and being:
(a) The proceeds of sale of 11 York Street, Glebe ("the Glebe Property");
(b) The rental from the Glebe Property from the period after the 12 months from the death of the Deceased; and
(c) The amount of $73,260.00 representing two deposits held by the Deceased with the Commonwealth Bank of Australia, namely Term Deposit 2172-50056354 and Savings account 2172-121847.
3. Orders Pursuant to s 40 of the Probate and Administration Act 1898 (NSW) that a grant of Letters of Administration, be made to David Arthur Jackson.
4. Orders that the Defendant (Ljiljana Bogic) repay the following amounts (exclusive of interest) within 56 days of the making of these orders to Mr Jackson in his capacity as administrator of the Estate of the Late Kata Sutic
(a) $73,260.00;
(b) $65,243.35; and
(c) $65,204.59.
5. Orders the Defendant pay those costs of the proceedings, including the cross claim and that the costs be paid on an indemnity basis."
In relation to the amounts referred to in Order 4, it is appropriate that Ljiljana be required to pay interest on the monies at the rate specified in s 100 of the Civil Procedure Act 2005 (NSW) from the date that the proceeds were paid to Ljiljana or her agents. In this connection, I will direct the Plaintiffs' legal advisers to prepare a calculation of the interest payable on the excess monies received by Ljiljana (from the date on which she or her agent received those monies) and to provide a copy of the calculation to my Associate on or before 2:00pm on 23 August 2021. That calculation is to be provided to Ljiljana on or before 2:00pm on 23 August 2021 by email both to her personal email account and to the email address of Mr Kostic.
I note that the Plaintiffs have filed a Notice of Motion on 21 June 2021 which has been listed for directions on 25 August 2021 by which they seek a gross sum costs order. That Notice of Motion should be served on Ljiljana by email both to her personal email account and to the email address of Mr Kostic.
[9]
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Decision last updated: 26 July 2021