Cetojevic v Cetojevic [2006] NSWSC 431

Cetojevic v Cetojevic [2006] NSWSC 431

The property was not held on a resulting trust as there was insufficient evidence to determine contributions with requisite certainty. However, the property was held on a constructive trust such that one-third of the proceeds was held for Nenad Cetojevic's estate, due to the parties’ joint endeavour and the absence of an express intention concerning the circumstances that arose. Even if that finding was wrong, one-third of the sale proceeds would be designated as notional estate and awarded to the widow under the Family Provision Act 1982 as special circumstances exist justifying provision and extension of time.

Parties
First Plaintiff/first Cross Defendant: Bogdan Cetojevic; Second Plaintiff/second Cross Defendant: Vukosava Cetojevic; Defendant/cross Claimant: Biljana Cetojevic
Jurisdiction
Australia
Judgment Date
26 April 2006
Procedural Posture
Civil Equity / Judgment
Outcome
One-third of the invested fund is held on constructive trust for the Estate of Nenad Cetojevic and devolves to the Cross-Claimant; plaintiffs to pay defendant's costs.
Legal Topics
Family Provision, Extension of Time, Constructive Trusts, Resulting Trusts, Notional Estate, Caveats, Joint Tenancy, Valuable Consideration
Succession Trusts Equity Conveyancing Family Provision Extension of Time Constructive Trusts Resulting Trusts +4 more

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Parties

Bogdan Cetojevic

First Plaintiff/first Cross Defendant

Vukosava Cetojevic

Second Plaintiff/second Cross Defendant

Biljana Cetojevic

Defendant/cross Claimant

Procedural Posture

Civil Equity / Judgment

Legal Issues

  1. 1 Whether the property was held on a resulting trust or constructive trust for Nenad Cetojevic's estate
  2. 2 Whether the estate or notional estate should provide for the deceased's widow under the Family Provision Act 1982
  3. 3 Whether the application for provision was within time or should be extended

Ratio Decidendi

The property was not held on a resulting trust as there was insufficient evidence to determine contributions with requisite certainty. However, the property was held on a constructive trust such that one-third of the proceeds was held for Nenad Cetojevic's estate, due to the parties’ joint endeavour and the absence of an express intention concerning the circumstances that arose. Even if that finding was wrong, one-third of the sale proceeds would be designated as notional estate and awarded to the widow under the Family Provision Act 1982 as special circumstances exist justifying provision and extension of time.

Court Disposition

One-third of the invested fund is held on constructive trust for the Estate of Nenad Cetojevic and devolves to the Cross-Claimant; plaintiffs to pay defendant's costs.

Orders

  • Declare that one-third of the fund, which will on maturity on 10 May 2006 consist of $488,553.78, is held on trust for the Estate of the Late Nenad Cetojevic.
  • Declare that, in the circumstances that have happened, that one-third share has by reason of the intestacy of the said deceased devolved to the Cross-Claimant pursuant to section 61B(3) Wills Probate and Administration Act 1898 .