Damevski v Hope [2016] NSWSC 1231

Damevski v Hope [2016] NSWSC 1231

The plaintiffs failed to establish any clear or unambiguous representation or encouragement, reasonable reliance, detriment and reasonableness sufficient to found an estoppel or constructive trust. They also failed to establish sufficient cause for bringing the family provision claim almost nine years after Gurga Damevski's death, and their conduct and the defendant's circumstances justified refusal of an extension of time. Even if leave had been granted, the circumstances would not have warranted additional provision.

Jurisdiction
Australia
Judgment Date
06 September 2016
Procedural Posture
Family Provision and Equitable Estoppel/constructive Trust Proceedings Concerning a Deceased Estate / Final Hearing of Summons, Including an Out of Time Application for Additional Provision
Outcome
Summons dismissed.
Legal Topics
['intestacy' 'extension of Time for Family Provision Claim' 'equitable Estoppel by Encouragement' 'constructive Trust' 'reliance and Detriment' 'uncorroborated Statements Attributed to a Deceased Person']
['succession' 'family Provision' 'equity' 'evidence'] ['intestacy' 'extension of Time for Family Provision Claim' 'equitable Estoppel by Encouragement' 'constructive Trust' 'reliance and Detriment' 'uncorroborated Statements Attributed to a Deceased Person']

Case Brief

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Procedural Posture

Family Provision and Equitable Estoppel/constructive Trust Proceedings Concerning a Deceased Estate / Final Hearing of Summons, Including an Out of Time Application for Additional Provision

Legal Issues

  1. 1 ['Whether the plaintiffs established an equity based on estoppel or constructive trust in relation to the Rockdale property.' 'Whether the plaintiffs acted to their detriment in reasonable reliance on any clear representation or encouragement by the deceased or Tome Damevski.' 'Whether there was sufficient cause to extend time for an application for additional provision under the Family Provision Act 1982.' "Whether, if leave were granted, additional provision should be made from Gurga Damevski's estate."]

Ratio Decidendi

The plaintiffs failed to establish any clear or unambiguous representation or encouragement, reasonable reliance, detriment and reasonableness sufficient to found an estoppel or constructive trust. They also failed to establish sufficient cause for bringing the family provision claim almost nine years after Gurga Damevski's death, and their conduct and the defendant's circumstances justified refusal of an extension of time. Even if leave had been granted, the circumstances would not have warranted additional provision.

Court Disposition

Summons dismissed.

Orders

  • ["The plaintiffs' application to extend the time within which an application for additional provision out of the estate of the deceased may be brought pursuant to the Family Provision Act 1982 is refused." 'The summons is dismissed.' "The plaintiffs are to pay the defendant's costs."]