Nevenka Dmitrovic v Branka Kleut [2024] NSWSC 1541

Nevenka Dmitrovic v Branka Kleut [2024] NSWSC 1541

No estoppel arises in favour of Branka Kleut. Although Nevenka made representations that Branka could live in the studio, Branka suffered no material detriment and did not act in reliance on the representations to her disadvantage; her occupation was to her own substantial benefit. Even if there was reliance, any detriment is far outweighed by the benefits, rendering any departure from induced assumption not unconscionable. Extension of time under s 58 of the Succession Act is refused: Branka failed to provide sufficient explanation for long delay and any provision would materially prejudice Nevenka and Veselinka. Notional estate and family provision orders are refused; Branka failed to...

Parties
First Plaintiff/first Cross Defendant: Nevenka Dmitrovic; Second Plaintiff/second Cross Defendant: Veselinka Dmitrovic-Gregory; Defendant/cross Claimant: Branka Kleut; Third Cross Defendant: Nevenka Dmitrovic trading as Executrix of the Estate of the late Zora Dmitrovic
Jurisdiction
Australia
Judgment Date
03 December 2024
Procedural Posture
Equity – Probate and Family Provision/fam. Provision/civil / Principal Judgment/post Trial
Outcome
Cross-claim dismissed; judgment for plaintiffs for possession; leave to issue writ of possession; directions for costs submissions.
Legal Topics
Proprietary Estoppel, Family Provision Proceedings, Notional Estate, Extensions of Time, Possession of Land
Equity Succession Estoppel Land Law Proprietary Estoppel Family Provision Proceedings Notional Estate Extensions of Time +1 more

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Parties

Nevenka Dmitrovic

First Plaintiff/first Cross Defendant

Veselinka Dmitrovic-Gregory

Second Plaintiff/second Cross Defendant

Branka Kleut

Defendant/cross Claimant

Nevenka Dmitrovic trading as Executrix of the Estate of the late Zora Dmitrovic

Third Cross Defendant

Procedural Posture

Equity – Probate and Family Provision/fam. Provision/civil / Principal Judgment/post Trial

Legal Issues

  1. 1 Whether proprietary estoppel in favour of Branka Kleut arises by reason of representations concerning a right to occupy or own part of Cowper Street property; whether extension of time for commencing family provision proceedings should be granted; whether notional estate orders should be granted; whether family provision order should be granted to Branka Kleut; whether order for possession should be made against Branka Kleut

Ratio Decidendi

No estoppel arises in favour of Branka Kleut. Although Nevenka made representations that Branka could live in the studio, Branka suffered no material detriment and did not act in reliance on the representations to her disadvantage; her occupation was to her own substantial benefit. Even if there was reliance, any detriment is far outweighed by the benefits, rendering any departure from induced assumption not unconscionable. Extension of time under s 58 of the Succession Act is refused: Branka failed to provide sufficient explanation for long delay and any provision would materially prejudice Nevenka and Veselinka. Notional estate and family provision orders are refused; Branka failed to...

Court Disposition

Cross-claim dismissed; judgment for plaintiffs for possession; leave to issue writ of possession; directions for costs submissions.

Orders

  • The cross-claim filed 5 December 2022 is dismissed.
  • Judgment for the plaintiffs against the defendant for possession of the whole of the land known as XX Cowper Street, Randwick, New South Wales, being the whole of the land comprised in certificate of title folio identifier Lot 1 in Deposited Plan 81492 (Property).