Nevenka Dmitrovic v Branka Kleut

This is an application by two sisters, Nevenka Dmitrovic and Veselinka Dmitrovic-Gregory, against their other sister, Branka Kleut. In this judgment, I will refer to each of the three sisters and relevant family members by their first names without intending any overfamiliarity or disrespect.

By their application, Nevenka and Veselinka seek possession of parts of the land at a property at XX Cowper Street, Randwick, New South Wales (Cowper Street property) as the registered proprietors of the Cowper Street property, as well as damages and/or equitable compensation. Branka presently resides in a studio on the Cowper Street property and has occupied different parts of the Cowper Street property at various points in time since approximately 2001.

Branka has made a cross-claim in these proceedings, principally seeking:

The proceedings were originally commenced in the Common Law Division of this court. By reason of Branka’s claim for a family provision order, the proceedings were transferred to the Equity Division (Succession and Probate List, now referred to as the Probate and Family Provision List) on 26 May 2023.

The main issues to be determined in these proceedings are:

At the hearing, Mr D Price appeared for Nevenka and Veselinka, instructed by Adams & Co Lawyers. Mr T Morahan appeared for Branka, instructed by Lang Noonan Legal. In making closing submissions, neither counsel had access to the transcript of the oral evidence given at the hearing. In considering those submissions, I have made allowance for that fact.

At the hearing, Nevenka and Veselinka were the principal witnesses in their own cases, each making multiple affidavits and being cross-examined. They also relied on an affidavit of costs affirmed by Sidney Barton Adams, who was not cross-examined.

At the hearing, Branka appeared as a witness in her own case. The other witnesses on whom Branka relied were her son, Goran Kleut, as well as a friend of Branka, Lisa Kathryn Colnan, and a former tenant of one of the units in the Cowper Street property, Kim Meddows. Each of Branka, Goran, Ms Colnan and Ms Meddows were cross-examined. Branka also relied on an affidavit of costs sworn by William Joseph Brett Noonan, who was not cross-examined.

At the outset, I note that various conversations and events (and the order of those events) relevant to the issues arising for determination in these proceedings are disputed between the parties — on occasion, vehemently so and at considerable odds from each other’s versions.

In every instance, I have endeavoured to evaluate each witness’s evidence, not only in the light of their responses in the course of cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events and probabilities of human behaviour, the existence and nature of corroborative evidence, and the effect and impression given by the evidence as a whole.

This is in line with the appropriate approach to be taken by a trial judge in assessing the reliability of evidence given by witnesses in the course of trial proceedings. Among the principles that guide this undertaking are the following:

In terms of the credibility of each of Nevenka, Veselinka and Branka as witnesses, bearing in mind the foregoing principles, I am inclined to make the following general remarks:

As a result of these general impressions formed by me, I have attempted, wherever possible, to anchor the following chronology in objectively established or corroborated facts and contemporaneous documents as opposed to the written or oral evidence given by any one party or witness in the proceedings.

In certain instances below, I have recorded the disparity in the versions given by the respective witnesses in their evidence about the same set of events. For many of those conflicting versions it is not necessary to resolve that disparity but where an event is central to the claims which are made in the proceedings, I have made findings about that event either at the point at which I have narrated the event or in my consideration of the different submissions made in relation to it.

Nevenka, Branka and Veselinka are sisters and the daughters of Zora. Goran is Branka’s son and Zora’s grandson.

Nevenka is 74 years of age, Branka is 71 years of age and Veselinka is 68 years of age. Goran is 49 years of age. Zora died on 15 April 2017, aged 90 years.

Zora died leaving a will dated 29 June 2004 (Will), under which Nevenka was appointed executrix and trustee. By the Will, Zora devised the whole of her estate to Nevenka, on trust, to be liquidated with the proceeds to be used to pay out all liabilities of the estate and the balance to go to Nevenka.

On 20 October 2017, probate of the Will was granted to Nevenka.

On 22 August 2018, the administration of Zora’s estate was completed.

At some point prior to October 1983, Zora, Nevenka, Branka and Veselinka jointly purchased a three-bedroom unit at Avoca Street Randwick, New South Wales (Avoca Street property).

For a period of years, the Avoca Street property served as the home of Zora, Nevenka and Veselinka. Throughout that period, Branka lived elsewhere with Goran, who was a child at that time.

In 1983, a dispute in respect of the Avoca Street property arose between Branka on the one hand and Nevenka, Veselinka and Zora on the other.

On 5 October 1983, the solicitors then acting for Branka, Hunt & Hunt Solicitors, sent a letter to Zora, Nevenka and Veselinka in relation to that dispute. Hunt & Hunt proposed that Branka be paid out of her share in the Avoca Street property and an agreement entered into in the following terms:

The evidence before me does not disclose whether a transaction in these terms was actually entered into, then or subsequently. I understand, however, that the Avoca Street property was the predecessor family property to the Cowper Street property and have inferred that it was sold sometime between October 1983 and 1988.

In 1988, Zora, Nevenka and Veselinka acquired the Cowper Street property as tenants-in-common in the following shares:

At the time of purchase, the Cowper Street property consisted of three units, with each unit containing two bedrooms, a kitchen and a bathroom, as well as a shared laundry and a separate garage.

Initially, Nevenka occupied Unit 1, Veselinka occupied Unit 2 and Zora occupied Unit 3, and each of them were regarded as “owning” the unit they occupied.

Veselinka later rented out Unit 2 after she moved to Quandialla in the Central West region of New South Wales and took up residence with her husband at a farm property known as Kilmarnock. From that time, Unit 2 was tenanted with the rent paid to Veselinka, including by:

Over the years, building works were carried out at the Cowper Street property at various times, including as follows:

On 10 February 1988, Branka purchased a unit at Clovelly Road, Randwick, New South Wales (Clovelly Road property) for $110,000.

Branka and Goran moved into and lived at the Clovelly Road property until late 2000 or early 2001.

On 8 February 1989, Zora executed a will (earlier will) under which Nevenka and Veselinka were appointed executrices.

By the earlier will, Zora devised and bequeathed any motor vehicle owned by her at the time of her death to Goran, and the residue of her estate to Nevenka and Veselinka in equal shares.

In June 2000, Zora left Australia to travel and spend time overseas in the former Yugoslavia and parts of Europe. At that time, in the absence of Zora, Unit 3 at the Cowper Street property became vacant.

In 2000, Branka decided to renovate and sell the Clovelly Road property.

In late 2000 or early 2001, Branka and Goran moved out of the Clovelly Road property to allow renovations and preparations for the sale of the property to proceed. At this time, Branka and Goran (who was then 25 years old and studying), at the invitation or suggestion of Zora and/or Nevenka, moved in to the Cowper Street property. The circumstances whereby Branka and Goran came to be living at the Cowper Street property on this occasion are contested (a matter which I have dealt with in more detail below).

In late 2000, Nevenka assisted Branka with renovations of the Clovelly Road property at no cost to Branka. Branka conceded in cross-examination that Nevenka assisted her with the renovations “[o]ut of the goodness of her heart”, because she was being a “good sister” (T20–21).

On 28 March 2001, Branka sold the Clovelly Road property for $320,000, $210,000 more than the $110,000 she had paid for it in 1988.

Branka says that in December 2000 she moved into her mother’s second bedroom in Unit 3, and Goran moved into the studio or workroom at the Cowper Street property, using Unit 3 as his base. Nevenka says this occurred in February 2001. There does not appear to be a material difference between these dates so it is not necessary to resolve that issue.

According to Branka, the reason that she and Goran moved into the Cowper Street property was that when she told Zora they would not have anywhere to live when the Clovelly Road property was sold, Zora responded by saying “[y]ou can come and live with me and Goran can stay in the workroom”. Branka says that this exchange occurred over the telephone, Zora being overseas at the time.

This is disputed by Nevenka, who says that she herself offered for Branka to move in to Unit 3 during a conversation between them that occurred in early 2001. Nevenka says that when Branka expressed a desire to renovate and sell the Clovelly Road property before purchasing a new property, Nevenka suggested to Branka that she could stay in Unit 3 while Zora was overseas, noting that Branka could complete the renovations of the Clovelly Road property and find a new property to move into before Zora’s return. Branka denies that a conversation of this description took place.

Nevenka says that shortly after this conversation with Branka, she spoke to Zora over the phone, stating that she had told Branka to move into Unit 3 while Zora was overseas, citing Branka’s plans to renovate and sell the Clovelly Road property before buying a new unit with a garage. Nevenka says that Zora responded by saying, “[d]o as you think is best.”

In her evidence, Branka stated that she was not aware of this conversation between her mother and her sister, and denied that Nevenka was responsible for any arrangement for her to move in with Zora at the Cowper Street property. In cross-examination, however, when it was put to Branka that the invitation to move in to Unit 3 at this time came from both Zora and Nevenka, she was less categorical in her denial (T20):

In all the circumstances, I consider that Branka and Goran came to be living at the Cowper Street property in late 2000/early 2001 by invitation (or at the very least with the consent) of both Nevenka and Zora. I consider that this was an informal arrangement that made sense in the context of their family relationships at that time (whereby Nevenka was happy to assist Branka, for instance, with preparing the Clovelly Road property for sale without any expectation of payment), and which was an instance of Branka’s mother and older sister helping her out financially.

On 21 February 2001, Branka purchased a three-bedroom unit at Dutruc Street, Randwick, New South Wales (Dutruc Street property) for $400,000.

Branka used the Dutruc Street property exclusively as an investment property; the evidence before me is that neither she nor Goran ever lived in the Dutruc Streety property. Branka continued to live in Zora’s guest bedroom in Unit 3 of the Cowper Street property for the whole of the period that she owned the Dutruc Street property (between February 2001 and August 2006). Neither she nor Goran paid rent to Zora, Nevenka or Veselinka as the owners of the Cowper Street property during that time.

Nevenka gave evidence, and Branka agreed in cross-examination (T22), that rental payments collected from tenants of the Dutruc Street property were used to pay off the mortgage over that property.

On 20 April 2001, Zora returned to Australia from overseas.

At this time, Zora moved back in to Unit 3 on the Cowper Street property, where Branka was living in Zora’s second bedroom.

Branka asserts that during the time she and Zora were occupying Unit 3 together (between April 2001 and January 2009), and at all times Branka was living at the Cowper Street property for the period that Zora was alive, she supported Zora emotionally and in her day-to-day activities.

In cross-examination, Branka stated that as at 2005 (T26):

In cross-examination, Goran described the state of Zora’s health and care needs as at 2006 as follows (T54):

Both Nevenka and Veselinka deny that Branka assisted Zora during the period from 2000 to Zora’s death in 2017. Nevenka gave evidence that prior to 2010 (when Zora became ill), Zora did not require assistance from anyone and did her own shopping, cleaning and cooking.

I am of the view that while living at the Cowper Street property during the relevant period, Branka likely assisted her mother in various ways. This may well have included driving her to the shops and assisting her with housework. In all likelihood, and having regard to the surrounding circumstances, I consider that Zora’s need for care and Branka’s contribution to Zora’s care was modest. I do not accept the evidence of Nevenka and Veselinka that their mother was entirely self-sufficient and received no assistance from Branka while they were living together in Unit 3. Nor am I persuaded by Branka’s depiction of Zora’s infirmity and frailty, which appears to be overstated. With regard to Goran’s evidence of the same events, I am mindful that his natural tendency in these proceedings was to align his evidence with that of his mother, Branka.

I also consider that the parties’ recollections, and in turn their respective accounts, of this matter are coloured by self-interest, resentment and acrimony. I am mindful not to permit that acrimony and antagonism to contaminate my findings here, in circumstances where the family relationships do appear at intermittent times to have been positive, functional and cooperative, involving some degree of mutual love and affection that guided their interactions and dealings with each other.

According to Branka, shortly after moving in to Unit 3 at the Cowper Street property, the following sequence of events took place:

In cross-examination, Branka was unable to give an exact date or date range (including the year) within which the above conversation with Nevenka or the Unit 2 renovations themselves occurred. She instead asserted that her recollection was tied to other events, maintaining that Unit 2 was renovated prior to Ms Meddows moving in to and occupying Unit 2 as a tenant (T17–18). The evidence before me is that Ms Meddows moved in to Unit 2 at the very earliest in January 2004, and the previous tenancy of the Kerlin brothers had ended in April 2002. On Branka’s version of events, this would place the renovations of Unit 2 sometime between April 2002 and January 2004.

Both Nevenka and Veselinka deny that Branka assisted in the renovation of Unit 2 when she moved in with Zora. According to Nevenka and Veselinka, the relevant Unit 2 renovations predated Branka moving in to Unit 3 on the Cowper Street property. Veselinka states that Unit 2 was occupied by two brothers (presumably referring to the Kerlin brothers) at the time Branka moved in to Unit 3, and that the two brothers rented Unit 2 between April 1999 and April 2002. Nevenka states that Unit 2 was renovated in or around late 1997 or early 1998, before Branka moved in to Unit 3 (in late 2000 or early 2001).

No evidence (documentary or otherwise) capable of demonstrating conclusively the dates and durations of the tenancies at Unit 2 was put before me. Nor was I presented with documentation to verify the dates or date range during which renovations of Unit 2 were carried out. I am therefore deprived of a fairly straightforward means of testing the veracity of the evidence given by each of Branka and Nevenka and Veselinka on this matter.

I have made findings below in relation to Branka’s assertions that she contributed and assisted with renovations of the different units on the Cowper Street property at various points in time.

According to Branka, upon completing the renovations to Unit 2, she and Nevenka proceeded to renovate Unit 3 (their mother’s unit). Branka states that this work consisted of laying cork tiles in the kitchen, tiling the laundry, sanding and polishing the timber floors, and painting the walls in Unit 3. Branka says that she and Zora continued to live in Unit 3 while these renovations were underway.

In cross-examination, Branka was again unable to give an exact date or date range (including the year) within which these renovations occurred, but said that she and Nevenka conducted renovations to Unit 3 on two separate occasions (T22).

Nevenka and Veselinka categorically deny that Branka was involved in any of the renovations to the units at the Cowper Street property. Moreover, in response to Branka’s evidence, Nevenka states that Unit 3 was in fact renovated in late 1997 and again in 2010. For her part, Veselinka states that she and Nevenka employed tradespeople to carry out renovations at the property well before Branka began living in Unit 3.

In this connection, Veselinka gave evidence relating to the state of Branka’s physical health (and, by implication, her capacity to assist with renovations) in or around 2001. Veselinka says that around the time Branka moved in to Unit 3 at the Cowper Street property, Branka (who at that stage was working full-time) told Veselinka that she was unwell, suffering from emphysema, lupus and Sjogren’s disease, and constantly tired, out of breath and struggling to work. This evidence from Veselinka is neither corroborated nor directly contradicted; however, Branka, at one point in cross-examination, seemed to develop something of a counternarrative, suggesting that her staying at the Cowper Street property was to the advantage of her family precisely because of her capacity for physical labour, her strength and her health (T23).

Goran gave evidence that while he was living at the Cowper Street property between approximately 2001 and August 2006, he witnessed Branka and Nevenka working on the Cowper Street property on multiple occasions. This included, he says, attending to maintenance and numerous jobs in Unit 3 as well as renovations to Nevenka’s unit, Unit 1.

Nevenka denies that she and Branka worked on the Cowper Street property together, and denies that Unit 1 was renovated during this time. Veselinka also denies that Branka renovated or assisted with the renovation of Unit 1 during this period.

The evidence of other witnesses as to Branka’s involvement in or contribution to renovations and building work at the Cowper Street property at various times is addressed below. As will become apparent, I have found that Branka had some level of involvement in and did contribute to renovations and building work at the Cowper Street property over the years.

According to Branka, when the renovations of Unit 3 were nearing completion, she intended to move out of the Cowper Street property and into the Dutruc Street property. Branka states that Zora said to her, “[w]hy can’t you stay longer? You can rent your place and be able to help Goran financially while he is studying”. Branka says that Zora was happy for Branka and Goran to stay with her and Nevenka because they lived as a family unit, got on well and supported each other.

In affidavit evidence, Branka suggested that this (the first) time Zora and Nevenka convinced her to stay living at the Cowper Street property was in 2004. In cross-examination, Branka was less certain and gave a range of possible dates between 2001 and 2006 (T23–26), noting that Goran was undertaking further study in the dramatic arts at the time (T25).

Branka was cross-examined on this aspect of her evidence, and in particular her reasons for remaining at the Cowper Street property at this time (T23). Branka maintained that Zora asked her to stay, that Zora always wanted her to stay in the family, and that it was to the family’s advantage that she stayed:

For her part, Nevenka denies that Branka was living with her as a family and that Branka was helping her, saying that they did not spend time together other than in the context of Nevenka’s visits to her mother while Branka was living in Unit 3 or when Zora later moved into Nevenka’s unit, Unit 1. Nevenka says that from 2001 to 2017 Branka and Zora hardly spoke, Branka was of the view that they had nothing to talk about, and Zora told her on one occasion that they had not spoken for a week.

Veselinka says that her observations of interactions between Zora, Nevenka and Branka were that the relationship was strained and tense, with them being short and abrupt in their discussions.

In terms of Branka’s reasons and/or motivations for remaining at the Cowper Street property at this time, Nevenka states that in or around March 2002, Branka said to her words to the effect of: “I am staying here because without the rent from Dutruc Street, I would not be able to pay my mortgage and Goran’s school fees.”

I note at this point the crystallisation of two opposing narratives, corresponding with each side’s case, to explain Branka’s ongoing occupation of the Cowper Street property. On the one hand is Branka’s “family unit” narrative, incorporating themes of harmonious cohabitation and ascribing to Zora a desire to assist Branka and Goran financially as well as a desire for Branka to be around to assist the family. On the other hand, Nevenka and Veselinka describe a breakdown of sisterly and mother-daughter relations and communication, complete dysfunctionality and general discontent, and suggest that Branka’s decision to remain living at Cowper Street was entirely mercenary, having nothing to do with Zora’s and/or Nevenka’s amenability to Branka’s ongoing occupation of the Cowper Street property pursuant to a mutually beneficial family arrangement.

Considering the inherent probabilities of the situation, I do not subscribe to either of these narratives in absolute terms. Neither scenario leaves room or accounts for inevitable flux in the family relationships. To my mind, a status quo was achieved which was to Branka’s benefit and which she was inclined to maintain whilst ever it suited her and Goran financially to do so. I consider that on this occasion she continued to live at the Cowper Street property on this basis, but not necessarily solely on this basis. Equally, I consider that she had reasons for remaining at Cowper Street that were independent of any request or invitation by Zora.

I do consider that Branka’s refusal here (and at later points) to admit that staying at the Cowper Street property was to her financial advantage reflects very poorly on her credibility as a witness. Given the obvious financial advantage she derived from living there rent-free — even if this benefit could be said to be partially offset by certain other burdens she notionally took on, such as assisting Zora — I regard her oblique and qualified answers to the proposition as disingenuous.

On 29 June 2004, Zora executed the Will. The Will is in the following terms:

I consider that nothing turns on the appointment of Branka as an alternative executrix and trustee in the Will if Nevenka was unable or unwilling to perform those roles.

On 1 May 2005, Branka purchased a studio apartment at Alison Road, Kensington, New South Wales (Alison Road property) for $185,000.

Neither Branka nor Goran ever lived at the Alison Road property. I infer from this that it was used solely as an investment property.

On 13 October 2006, Branka sold the Alison Road property for $200,000, $15,000 more than the $185,000 she paid for it in May 2005.

On 15 August 2006, Branka sold the Dutruc Street property for $600,000, $200,000 more than the $400,000 she paid for it in February 2001. That same day, Branka purchased a two-bedroom unit at King Street, Randwick, New South Wales (King Street property) for $435,000.

According to Goran, Branka purchased the King Street property for him to live in and he moved out of the Cowper Street property and into the King Street property sometime after it was purchased.

Under cross-examination, Goran gave evidence that while he was living at the King Street property he paid rent to Branka over a discrete period of three months, and after that and otherwise only assisted his mother however and whenever he could (T58):

According to Branka, she intended to move into the King Street property along with Goran after purchasing it in August 2006, but Zora and Nevenka said they wanted her to continue to stay and live with them. Branka says that the three of them had the following exchange, which Nevenka denies:

Goran says that around this time, Branka discussed with him her decision to move out of the Cowper Street property and into a place of her own. Goran also says that he visited the Cowper Street property regularly after moving out and Zora, Nevenka and Branka all appeared to get on very well together and lived as a family. For her part, Nevenka denies that Goran visited regularly after moving out.

Nevenka agrees that shortly after Branka purchased the King Street property Branka expressed an intention to move out of the Cowper Street property and into the King Street property, but says that a few weeks later, Branka said to her words to the effect of, “I will stay longer to save more money, I don’t want to pay a mortgage all my life.”

Branka also says that Zora and Nevenka made her feel guilty for wanting to move away, and that they had the following exchange, which Nevenka also denies:

All of this is contested by Nevenka and Veselinka. Nevenka says that in 2006, Zora lived independently and did not require anyone to look after her. Veselinka says that Zora did not have any health issues or require care at that time. Up until 2010, Nevenka says that Zora did not require assistance as she did her own shopping, cleaning and cooking and she regularly socialised with friends and family.

As detailed above, Goran’s evidence is that in 2006, Zora’s mobility was somewhat impaired and she needed assistance including lifts to and from the shops (T54).

The evidence given by the parties here works to continue reinforcing the respective opposing narratives adopted by each side, which I have referred to above. To my mind, the likelihood is that the truth lies somewhere in between; that is, Branka wished to stay living at the Cowper Street property because of the advantages to herself and Goran, and it served the interests of Nevenka and Zora, to some extent, for Branka to be available from time to time to assist Zora modestly as she grew older. On balance, I find that the suggestion and/or proposal that Branka remain living at the Cowper Street property came from Zora, Nevenka did not disagree with it, and Branka readily adopted it because she could see how it would benefit herself and Goran.

Around this time, Branka says that she articulated to Nevenka a disinclination to continue staying in Zora’s second bedroom in Unit 3 with her furniture in the garage. Branka says that she and Nevenka proceeded to have the following exchange:

Nevenka denies that an exchange along these lines ever took place. She was not challenged on this denial in the course of cross-examination.

Branka suggests that Nevenka’s offer to build the studio above the garages at the Cowper Street property was made as an “inducement” for Branka to remain living at the Cowper Street property. Branka also says that around this time Nevenka told her that Branka staying with them would make them feel “more secure” (T28).

Branka was cross-examined on her evidence in relation to Nevenka’s first alleged studio representation, and the reasons she says the offer to build the studio was made (T33–34). She conceded that in 2006, she had no specific need for a studio apartment to be built for her, but stated that Nevenka made the offer because both she and Zora wanted Branka to remain living with them. Branka said that for that reason, and because they were sisters, she did not consider it “extraordinary” for Nevenka to have made that offer.

For his part, Goran gave evidence that he was present during conversations where words to the above effect (including Nevenka’s first alleged studio representation) were said. Goran also says he was present on several occasions when Zora and Nevenka discussed Branka’s desire to move out.

Goran further asserts that on several occasions he was present during conversations about the construction of a studio above the garage, which was intended to serve as Branka’s residence. Goran also says that both Zora and Nevenka said the following to him, which Nevenka denies:

Goran was cross-examined on this matter, and in particular about the purpose for which the studio was being built and relevant representations alleged to have been made at this time (T55–57):

Ms Meddows gave evidence that she was informed by Nevenka that the studio was “for Branka to live in.” Nevenka denies this and says she never spoke with Ms Meddows about the Cowper Street property, other than to notify her that there would be building work on the property.

Under the heading titled “Consideration” in the section dealing with Issue 1 below, I have set out my findings in relation to whether Nevenka’s first alleged studio representation was made to Branka. In short, I have found that it was likely to have been made.

According to Branka, at the time she was speaking with Nevenka about Nevenka and Zora wanting her to stay at the property, Zora was present and they had the following further exchange (Zora’s alleged promise):

Goran says that on more than one occasion, he witnessed Zora tell Branka that she need not be concerned about her living arrangements as she would have the studio and one-third of Zora’s share of the Cowper Street property.

This is contested by Nevenka and Veselinka, who say that they never heard or observed Zora talk about the Will or state that Branka would receive the studio or a third of her share in the Cowper Street property. Veselinka also says that she, Nevenka and Zora never discussed leaving any part of the Cowper Street property to anyone.

Branka says that following Zora’s alleged promise, she believed that she would have an exclusive right to occupy the studio for as long as she wished and that Zora would leave her an equal share of her interest in the Cowper Street property. In cross-examination (T31), when asked whether she was concerned that receiving one-third of Zora’s three-eighths share in the Cowper Streety property might not translate into an entitlement to live in the house, Branka indicated that she did not have any such concern.

Under cross-examination (T32), Branka responded to questions put to her about why she made no attempts to confirm that Zora had taken steps to action her promise. Branka leaned, once more, on the fact of the mother-daughter relationship, appearing to suggest that this supplied a self-evident and stable basis for the making of Zora’s alleged promise:

Under the heading titled “Consideration” in the section dealing with Issue 1 below, I have set out my findings in relation to whether Zora’s alleged promise was made to Branka. In my view, it was not.

In around 2006 or early 2007, Nevenka applied for development approval for the construction of the studio on the Cowper Street property (development application).

On 2 May 2007, a proposed development plan for the construction of a first-floor studio above the existing garages on the Cowper Street property dated July 2006 (development plan) was received by Randwick City Council. The development plan, which had been produced by High Design, a professional architectural design and drafting service, listed Nevenka as the client.

On 5 June 2007, the development application was approved by Randwick City Council.

The notice of determination for the development application, issued by letter dated 6 June 2007 to Nevenka, included the following details:

Under the subheading ‘Conditions of consent’, the notice of determination relevantly stipulated:

According to Branka, she and Nevenka prepared the initial and revised plans for development approval of the studio. This is contested by Nevenka, who says that she prepared the initial draft plans and then instructed architects who completed the revised plan for the studio, which was then resubmitted for development approval.

In cross-examination, Branka accepted that she was not the client instructing the architects and that Nevenka dealt with the architects, but maintained that she, jointly with Nevenka, made decisions about the studio and its design and construction (T37).

Nevenka says that the studio was not approved for residential occupation by Randwick City Council and it was not built for Branka or anyone else to live in.

Ms Colnan gave evidence that after Branka moved in to the Cowper Street property, she would visit Branka on weekends for coffee around six times a year. Ms Colnan says that on one of these visits in or around 2007 or 2008, when the studio was being constructed on the Cowper Street property, Nevenka told her that the studio was being built for Branka. Ms Colnan states that Nevenka said the following words in her presence:

Nevenka denies having said this.

My findings in relation to the above evidence concerning steps preparatory to the construction of the studio on the Cowper Street property that were taken are as follows.

First, I reject Nevenka’s evidence that the studio was not being built for Branka or anyone else to live in, in circumstances where Nevenka and Veselinka have failed to point to any alternative reason for constructing the studio or use (other than to house Branka) to which the studio was intended to be put. Supporting this impression is the fact that the conditions of the development consent made clear that the structure could not be leased or used for separate residential occupation or commercial purposes at any time. There is also the evidence of Ms Meddows and Ms Colnan, both of whom recall being told by Nevenka that the studio was being built for Branka to live in. Their accounts tend to corroborate Branka’s version of events and as corroborative evidence emanating from persons independent of the family, I give particular weight to them.

Secondly, I consider that a finding by me that the studio was being built for Branka to live in (at least initially, and without precluding other uses which might later be contemplated) is consistent with the apparent logic of events. This is so where Branka was evidently living at the Cowper Street property on more than a temporary basis, having already bought and sold the Dutruc Street property and the Alison Road property and purchased the King Street property by this time, without setting herself up to live in any of those properties and instead using the former two as investment properties and reserving the latter as accommodation for Goran. It follows from this that Branka would, in all likelihood, have had some input in the design of a studio which was being constructed for her to move into. I am satisfied that Branka would have had some level of involvement in decisions concerning the design and construction of the studio.

Thirdly, only Branka was likely to fit the description of a person who could permissibly occupy the studio, given that it was a condition of the development approval that the studio was not to be used, let or adapted for separate residential occupation, but Branka was related to Zora and Nevenka and in that sense was not “separate” from the family group living at the Cowper Street property.

Accordingly, at this juncture, I make the following factual findings:

Between the latter half of 2007 and 2008, the studio was constructed.

Nevenka says that from 2008 to 2010, she was the owner-builder of the studio. Nevenka says she undertook various building courses to become an owner-builder and also had meetings with engineers, builders and tradespeople regarding the building work and materials to be used.

According to Branka, she and Nevenka completed various work in the studio including tiling, painting, laying floorboards and skirting, fitting a door to the bathroom, installing door frames and architraves, and sanding and polishing the floors. Branka says that Nevenka paid for construction of the studio, but she paid for the flooring, tiling, electrical, fixtures and taps.

This is contested by Nevenka, who says that Branka did not complete any work on the studio other than helping her install the floorboards and did not pay for any materials, stating that she herself purchased everything for the studio at auctions. Nevenka did concede that Branka occasionally assisted her with some minor work and on one occasion helped polish the floor in the studio.

In cross-examination, Branka maintained that she assisted Nevenka with work on the studio and that she paid for an invoice of 18 June 2008 for granite tiles that was addressed to Nevenka in cash (T34–35). She also said that she gave Nevenka cash on a number of occasions, and that any receipts in respect of things that she had paid for in connection with the construction of the studio (T34):

In cross-examination, when it was put to Branka that there was no requirement to contribute anything (in terms of finance) towards the construction of the studio as a condition of it being built, Branka gave the following responses (T35):

Ms Meddows gave evidence that during her time living in Unit 2 at the Cowper Street property (including during this period), she was in contact with Zora, Nevenka and Branka on an almost daily basis and that on most days she witnessed Branka and Nevenka working on the studio and performing tasks including painting, installing windows, laying timber floors and tiling. Ms Meddows also stated in her affidavit evidence that she witnessed Branka and Nevenka ‘put[ting] in the fixtures’ in the studio.

Under cross-examination, when asked about the work performed on the studio, Goran made some suggestion that Nevenka (at this stage aged in her fifties) was weaker than Branka and required her assistance with the construction work. He gave the following evidence (T55):

On these matters, I tend to find Branka’s evidence more credible for several reasons. For one, Nevenka’s evidence as to the nature and degree of Branka’s contributions (in terms of labour) towards the construction of the studio is contradicted by that of a witness independent of the family, Ms Meddows. As frequently was the case with Nevenka’s evidence, Nevenka took an extreme starting point, stating that Branka did not complete any work on the studio other than assisting with the installation of the floorboards, polishing the floor in the studio on one occasion and carrying out other occasional minor work. Against this is the evidence of Ms Meddows who says she observed Branka with Nevenka performing work on the studio extensively — painting, tiling, laying flooring, and installing windows — and fitting it out. While accepting that Nevenka may well have taken primary responsibility for and essentially project-managed the construction of the studio (as evidenced, among other things, by the appearance of her name on the development plan and Branka’s own evidence that Nevenka liaised with the architects), I do not accept Nevenka’s evidence that Branka’s contributions to its construction were negligible.

In relation to Goran’s evidence, I am cognisant of both sides in these proceedings pointing to bouts of ill-health suffered by each of Nevenka and Branka at different times as demonstrative of their limited capability to care for Zora or engage in physical labour of the kind the renovations to the Cowper Street property no doubt involved. The circumstances disclose that despite their respective illnesses, over a period of years the sisters carried out substantial improvements and modifications to the Cowper Street property, and were seen doing so. I am not prepared to draw inferences about the capacity (or incapacity) of either Nevenka or Branka to do the work involved in the relevant renovations on account of their actual or professed state(s) of health, or to make adverse findings as to their credibility as witnesses on such a basis, where both of them were evidently physically robust enough to perform the work and assisted each other in these endeavours.

As to Branka’s financial contributions, there is a distinct lack of documentary evidence, such as invoices or receipts, capable of demonstrating whether and how much she paid towards the fitting out of the studio. Branka herself maintained that there was no formal division of the expenses between herself and Nevenka, and that they each paid for things here and there. Left to base my assessment on the factual surrounding circumstances, and the general impression I have formed of Branka’s tendency to take financial advantage whenever it was available to her, I am satisfied that she contributed very little (if anything) to the expenses incurred in relation to the construction of the studio.

On 19 December 2008, Branka purchased a one-bedroom unit at Don Juan Avenue, Randwick, New South Wales (Don Juan Avenue property) for $370,000.

Goran says that he moved in to the Don Juan Avenue property shortly after it was purchased. Branka says that Goran moving in to the Don Juan Avenue property was what was contemplated at that time. She made the following statements in cross-examination (T38):

In cross-examination, Branka gave the following further evidence as to the occupation of the Don Juan Avenue property by Goran and his family, noting that they did not pay rent but covered some utility bills, and that there was no mortgage over the property (T40–41):

In cross-examination, Goran accepted that while living at the Don Juan Avenue property he did not pay Branka any rent (T58–59). Goran said that when he was living at the Don Juan Avenue property, he was often borrowing money from his family and that he would sometimes contribute money towards electricity bills when he had it, but otherwise had to ask Branka to “help [him] out.”

On 24 December 2008, an occupation certificate for the studio was issued to Nevenka by Randwick City Council.

In January 2009, Branka moved out of Unit 3 and into the studio on the Cowper Street property.

At this time, according to Nevenka, Branka asked Nevenka if she could sleep in the studio at the Cowper Street property. Nevenka says that at this stage the painting of the studio had not yet been finished, and Branka offered to finish the painting. Nevenka says that she agreed that Branka could stay in the studio if Branka did the painting, contributed to the payment of utilities (water, council rates, electricity and gas), provided help in the garden, and cleaned around the house, and on the condition that she left the studio when Veselinka came to Sydney or if Nevenka needed it for anything. Branka denies that a conversation of this description took place.

According to Branka, after moving in to the studio she continued to care for Zora and she, Zora and Nevenka lived in harmony, enjoying spending time together and each doing “what [they] could to maintain the property, clean etc”.

This is disputed by Nevenka and Veselinka. Nevenka says that from 2001 to 2017, she observed that Branka rarely spoke at length with Zora and that on one occasion Zora told her that it had been a week since Zora and Branka had spoken. Veselinka denies that the family lived together in harmony at this time.

Under cross-examination (T91–92), Nevenka agreed that she took no steps around this time to have Branka leave the property. Nevenka resisted any suggestion that Branka had a right to occupy the studio, stating that it was a case of Nevenka allowing Branka to be there subject to particular conditions, including that she complete the painting, perform gardening and maintenance work, and pay bills, and vacate the premises for Veselinka or other visitors as required. When asked about whether Branka complied with those conditions, Nevenka responded (T92):

In cross-examination, Veselinka accepted that on occasion when she came to Sydney she asked for Branka’s permission to stay in the studio, as opposed to Branka being obliged to vacate the studio so that she could stay there (T128–130). Veselinka was taken to a series of text messages exchanged in May 2021 demonstrating these matters, including the following:

In my assessment, I consider that it is likely that Nevenka permitted Branka to move into and occupy the studio, having built it for that purpose. This is reinforced by Veselinka evidently holding the view that she needed Branka’s permission to stay in the studio on those occasions when she travelled to Sydney.

Nevenka and Veselinka say that at all relevant times while she was living at the Cowper Street property, Branka never provided any assistance with maintenance or cleaning of the property. Nevenka also says that Branka never made any contribution towards water bills or council rates and only made occasional contributions to electricity and gas bills.

Against this, Goran gave evidence that while he was living at the Cowper Street property between approximately 2001 and August 2006, he witnessed Branka and Nevenka working on the property on multiple occasions. This included, he says, attending to general property maintenance and numerous jobs in Zora’s unit as well as renovations to Nevenka’s unit.

Similarly, Ms Meddows gave evidence that while she was living in Unit 2 on the Cowper Street property, she observed Branka regularly assisting with general maintenance of the property and of Unit 2, either by herself or with Nevenka, including house repairs, gardening, tending to the lawns, painting and cleaning the gutters.

As noted above, Nevenka and Veselinka strenuously deny that Branka was involved in any of the renovations or improvements to the units on the Cowper Street property. Branka maintains that she assisted with renovations to all three units on the property at different times, including Unit 2 shortly after she moved into the Cowper Street property in or around 2001, Unit 3 thereafter, and Unit 1 in 2010 (the details of which are set out below), as well as with the construction of the studio.

Ms Colnan states that over a period of years when she would come to visit Branka at the Cowper Street property on weekends, she witnessed Branka assisting in the renovations of at least two apartments on the property. She says that on several occasions she observed Branka painting, laying timber floors and tiling and installing fixtures and fittings.

In cross-examination, Ms Colnan conceded that she did not herself witness Branka installing fixtures or laying tiles at the Cowper Street property, but that Branka and Nevenka told her they were doing it together. Ms Colnan also said that she witnessed Branka laying timber floors on one occasion and painting on two or three occasions, and said that when she would visit, it was clear to her that Branka had been tiling or carrying out other work on the property because (T70):

According to Ms Colnan, Nevenka on one occasion said to her that she was grateful for Branka’s assistance in the renovations and “for the money she saved [her] by not having to employ tradesmen.” Nevenka denies having said this.

Like much of the evidence given by each of the sisters in these proceedings, their respective accounts of these matters tend towards the extreme, particularly in Nevenka’s case. I am inclined to place the greatest weight on the evidence provided by Ms Meddows and Ms Colnan as witnesses outside the family, whose accounts give some corroboration to the version of events given by Branka and Goran. I also consider that Nevenka and Veselinka’s denials that Branka performed any substantial work on the Cowper Street property, in circumstances where others have observed Branka engaging in maintenance and renovation work on different parts of the property at different times, undermine their credibility generally.

I am comfortably satisfied that it is likely that Branka did in fact perform work on the Cowper Street property throughout the period she was living there and likely attended to maintenance of the Cowper Street property too. The fact that she was seen doing such work by persons independent of the family also suggests to me that her contributions were more than nominal. I am not, however, satisfied that Branka made anything more than minor financial contributions while she lived in the studio given that there is no documentary evidence to support her having done so and given what I consider to be her utilisation of the living arrangements at the Cowper Street property to her financial advantage.

On 15 July 2009, Branka sold the King Street property for $565,000, $130,000 more than the $435,000 she paid for it in August 2006. By this time, Goran was living in the Don Juan Avenue property.

In 2010, a top floor was added to Unit 1.

According to Branka, these works included extending Nevenka’s unit by building an additional floor and remodelling the existing floor. Branka says that Nevenka paid for the construction, plumbing and electrical works involved in this set of renovations, but that she undertook most of the other work including tiling of the existing floor of the apartment, installing doors, tiling the walls, painting, sanding and polishing floors and stairs. She gave evidence that at one point in the course of renovating Nevenka’s unit, she fell from a ladder and cracked several ribs.

Goran gave evidence that he observed Branka and Nevenka together renovating Nevenka’s unit.

Nevenka denies that Branka provided any assistance with the renovation of her unit insofar as she denies any substantive involvement by Branka in renovations to the Cowper Street property.

Branka says she was happy to assist with the renovations of Nevenka’s unit as they were family and she believed she had a place to live for as long as she liked.

Given my finding that it is likely that Branka assisted with earlier renovations, I consider that it is also likely that Branka undertook work on the renovations of Nevenka’s unit.

Nevenka gave evidence that Unit 3 underwent further renovations in 2010.

Veselinka and Nevenka say that in around 2010, Zora became ill with emphysema, and later with gout and heart problems, and Nevenka became Zora’s full-time carer. At this point in time, Nevenka was not working, having retired in late 2006. Branka was still working full-time.

Nevenka says that in early 2011, Zora moved into her unit (Unit 1) as Zora was becoming very sick and was increasingly dependent on her for assistance. Nevenka says that she organised medical and other appointments for Zora and cared for Zora until her death in 2017.

Nevenka and Veselinka assert that Branka had no role in caring for Zora from 2010 until Zora’s death in 2017.

Branka gave no evidence as to the level of care she personally provided to Zora from this point in time until Zora’s death in 2017 other than to say that Zora was in need of assistance at all relevant times while Branka was living at the Cowper Street property and that she rendered such assistance. Branka was not cross-examined on this matter.

My findings above that it is likely that Branka assisted Zora in various ways while living at the Cowper Street property during the relevant period are also relevant to the time that Zora’s health was declining, but I consider that it is likely that the vast bulk of the care for Zora was undertaken by Nevenka given that Zora was living with her in Unit 1 and Branka was in full-time employment.

According to Nevenka, in November 2012 Branka moved out of the studio and into the guest bedroom of Unit 1 and remained there until 10 March 2021, a period of just over eight years. Nevenka says that Branka moved into her guest bedroom as Nevenka had agreed to look after Goran’s son, on the condition that Branka would sleep in her spare room and “look after him at night so that [she (Nevenka)] could have a good night’s sleep.”

Nevenka says that Branka lived in the studio for short periods of time while Branka was sick in 2015 or 2016 and when Zora passed away in 2017, but otherwise occupied Unit 1, noting that Branka’s clothes remained in her spare room.

By Nevenka’s account, the living arrangements at the Cowper Street property at this time were as follows (T103–105):

During cross-examination, Branka initially agreed that she moved into Nevenka’s unit in 2012, but proceeded to dispute the relevant dates put to her. She characterised the circumstances in which she came to be living in Unit 1 on the Cowper Street property as follows, agreeing that the arrangement had to do with Nevenka looking after Goran’s young son but describing her occupation of Unit 1 as short-term and/or occasional (T39–40):

The evidence about the living arrangements of Branka at the Cowper Street property between 2012 and 2021 highlights the significant swings in the relationship between Nevenka and Branka. Nevenka maintains that Branka moved into Unit 1 and remained there for that period. Branka says that she stayed in Unit 1 only on the nights that Nevenka had been caring for Goran’s son. Again, I consider that the truth lies between these conflicting versions and that it is likely that Branka spent a substantial amount of time living with Nevenka in Unit 1 as Nevenka stated in her evidence but returned to the studio intermittently across that time, except for the period in which Goran and his family lived there in 2019.

On 15 April 2017, Zora died leaving the Will and an estate worth $1.2 million.

Branka says that a short time after Zora’s death, she had an exchange with Nevenka where Nevenka informed her that Nevenka was the sole beneficiary named in the Will; that Branka would have a right to live in the studio; and that Nevenka would leave her the studio in her will:

This is contested by Nevenka, who denies the conversation and denies making any promise to Branka that she had a right to live in the studio or would obtain ownership of the studio via provision in Nevenka’s will.

Branka says that she was confused that Zora had not done as she had promised by leaving Branka one third of her share in the Cowper Street property. Branka also says that following the above exchange with Nevenka, her understanding was she would be taken care of and had no reason to question anything, as she would have the studio and the three boys (Goran and Zora’s great-grandchildren) would eventually get everything.

Nevenka says that she provided a copy of the Will to Veselinka and Branka in 2017. This is contested by Branka, who consistently denied receiving a copy of the Will. At the hearing before me, Nevenka was not challenged on this aspect of her evidence.

Veselinka says that Nevenka sent her a copy of the Will, probate papers and instructions in relation to challenging the Will on 16 September 2017.

According to Veselinka, shortly after this, when she came to Sydney in November 2017, she had the following conversation with Branka:

For reasons I will set out in greater detail below, I do not consider the factual question of whether Branka received a copy of the Will at this time to be of crucial importance to the legal issues I am required to determine in the proceedings. Irrespective of which of Branka’s or Nevenka and Veselinka’s account I prefer, it is clear that Branka knew, as at 2017, that provision had not been made for her in the Will and that she stood to receive nothing under it.

In relation to Nevenka’s second alleged studio representation, under the heading titled “Consideration” in the section dealing with Issue 1 below, I have set out my findings in relation to whether that representation was made to Branka. In short, I have found that a form of it was made, but that it did not extend to a promise on the part of Nevenka that she would leave the studio to Branka in her will. In my view, the representation that was made was as to Branka having a right to live in the studio and did not amount to a promise of any form of ownership of the studio.

On 20 October 2017, this court granted probate of the Will to Nevenka.

Nevenka says that following the grant of probate, she paid the following liabilities of the estate totalling $11,583 (with no remaining liabilities):

According to Branka, Nevenka had been in control of Zora’s affairs and was a signatory to Zora’s bank account, so that neither she nor Veselinka had access to Zora’s records.

On 22 August 2018, in accordance with the terms of the Will, Zora’s interest in the Cowper Street property was transferred into Nevenka’s name and the administration of the estate was duly completed. I note that this distribution took place after the expiration of the prescribed statutory 12-month period within which a family provision application can be made pursuant to s 58(2) of the Succession Act.

As at 22 August 2018, Nevenka and Veselinka became the registered owners of the Cowper Street property as tenants-in-common in unequal proportions. Nevenka’s share of the Cowper Street property has increased to 75% (three-quarters share) and Veselinka’s share remains 25% (one-quarter share) pursuant to the Will.

Nevenka gave evidence that in March 2019, she had a conversation with Branka in the course of which Branka expressed a wish to sell her unit (presumably meaning the Don Juan Avenue property) and buy a large one to move into, preferably in Randwick. Nevenka says that she offered for Goran to move into “the unit” (presumably referring to the studio at the Cowper Street property) while Branka was buying and selling units, noting this would take at least six months.

This is contested by Branka, who denies having had the above conversation with Nevenka but says that words to the following effect were exchanged between them around this time and that she ultimately accepted Nevenka’s offer for Goran to move into the studio and Branka to move into Unit 1:

In cross-examination, Branka insisted that she never told Nevenka that she herself would be moving out of the Cowper Street property and into the new property, and that the plan at all times was for Goran and his family to eventually take up residence in the new property once it was purchased (T42).

Following this, in around August 2019, Goran, his partner and their son moved out of the Don Juan Avenue property and into the studio for a period of six months.

On 12 September 2019, Branka sold the Don Juan Avenue property for $695,000, $325,000 more than the $370,000 she paid when she acquired it in December 2008.

I prefer the evidence of Branka in relation to this episode as I consider that Branka wished to take financial advantage of living rent-free at the Cowper Street property (and in the studio which had been built for her) for as long as she possibly could. I consider that Branka is unlikely to have expressed any intention to move out when she had not even bought a property into which she, Goran and his family might move together. I think that it is likely that Branka was looking to house Goran and his family at no cost to them or her for the period before she was able to find another unit into which they could move.

On 21 October 2019, Branka purchased a two-bedroom unit at Prince Street, Randwick, New South Wales (Prince Street property) for $940,000. There was no mortgage over the property.

According to Veselinka, Branka called her when she purchased the Prince Street property and said:

In cross-examination, Branka maintained that she never represented to either of her sisters that she would move into the Prince Street property (T42). I accept Branka’s evidence based on the probability that she wanted to be able to house all of her family, including herself, at no financial cost to her or them.

In November 2019, Nevenka suffered a lung infection. From this time, she has had ongoing respiratory health issues as a result of multiple reinfections, along with several admissions to hospital for treatment. Branka says that around this time, she took Nevenka to hospital on a number of occasions.

During this same period, it appears that the relationship between Nevenka and Branka (who was still living in Nevenka’s unit at this point) began to sour significantly.

According to Branka, Nevenka stopped talking to her and on one occasion demanded that she leave Unit 1, saying (alleged expletives omitted), “Get out of my house. I gave you the studio, go and live there” (Nevenka's third alleged studio representation). Branka says that following this interaction, she became concerned about Nevenka’s behaviour, which she perceived as confused, erratic and irrational.

For her part, Nevenka denies that she said the above words attributed to her by Branka, and denies that she exhibited confused or erratic behaviour at this or any other time. Veselinka says that she has never observed any such behaviour on the part of Nevenka.

Branka also says that around this time, she:

I am unable to be satisfied about the alleged confused, erratic and irrational behaviour of Nevenka according to Branka. I have no doubt that there was a significant falling out between Nevenka and Branka around this time, in the course of which it is likely that they had heated and emotional exchanges.

As I have indicated under the heading titled “Consideration” in the section dealing with Issue 1 below, on the balance of probabilities, something similar to Nevenka’s third alleged studio representation was made to Branka by Nevenka, although I am only satisfied that it imported Nevenka having given Branka the studio to live in, not to own.

In 2020, over a period of months coinciding with the COVID-19 lockdown period(s) in Sydney, the Prince Street property was renovated.

Nevenka gave evidence that around the time Branka bought the Prince Street property, Branka told Nevenka that the bathroom need to be completely re-modelled. She also says that by the second half of 2020, renovations at the Prince Street property were completed and some of Branka’s furniture had been transferred into it, although Branka remained living in Unit 1 on the Cowper Street property.

The nature of the renovations that were carried out at the Prince Street property is somewhat unclear. It appears that work was done to create an additional room at the Prince Street property by enclosing what was once a balcony. Both Branka (T42) and Goran (T59) deny that the result was an additional bedroom (or even a room that could be used as an extra bedroom), but without specifying how exactly that additional room is or has been used.

In the second half of 2020, shortly after the renovations to the Prince Street property were completed, Goran, his partner and his son moved out of the studio at the Cowper Street property and into the Prince Street property. In cross-examination, Branka indicated that because it took some time for the internet to get connected, Goran and his family moved out of the Cowper Street property and into the Prince Street property progressively (T44). Goran gave evidence that he and his family spent the first and second lockdowns (or part of them) living in the Prince Street property.

Goran and his family presently live at the Prince Street property. They have never paid rent to Branka while occupying the Prince Street property, but Branka says that whenever they have lived in a property owned by her, they have paid expenses (T43).

In response to questions I asked Goran at the hearing, he agreed that he does not pay any rent to Branka in respect of his (and his family’s) living arrangements at the Prince Street property, but stated that they “take care of things” and send Branka money every so often (T60):

According to Nevenka, in early 2021, Branka represented to Nevenka that she would be moving out of the Cowper Street property and into the Prince Street property along with Goran and his family. Nevenka says that in February 2021, Branka told her that the internet at the Prince Street property would be connected on 15 March 2021 and said, “we are all moving out”. Branka denies having said this, maintaining that she only ever said that Goran and his family would be moving into the Prince Street property, while she would be moving back into the studio, which she says she proceeded to do.

Under cross-examination, Branka insisted that there was never any question of her moving out of the Cowper Street property (T42):

On 10 March 2021, Nevenka returned from an overnight stay in hospital, having been admitted as an inpatient the previous day for treatment for pneumonia. Upon returning to her unit, where Branka was still living at this point, she and Branka had an argument the details of which are disputed but which appears to have been triggered by Nevenka asking Branka where her coffee-making equipment was, before descending into an aggressive verbal exchange, in the course of which:

Following this exchange, Branka moved back into the studio, which she has continued to occupy ever since. Nevenka says that Branka has lived in the studio without her or Veselinka’s permission since 15 March 2021.

According to Nevenka, in late March 2021, she and Branka had the following exchange:

Branka strenuously denies that they had a conversation along these lines.

Veselinka gave evidence that when she was in Sydney several months later, in November 2021, Branka took her to see the Prince Street property. Veselinka says that on this occasion, Branka said to her, “We are all moving in together. I have my family and she can stay in that big old house all by herself.”

It is clear to me that by this point in time, on either Branka’s or Nevenka’s version of events, the relationship between the sisters was rapidly deteriorating. Whatever the precise legal and social character of the arrangement pursuant to which Branka was living at the Cowper Street property at this time, that arrangement was fast becoming untenable in light of the degree of hostility between Branka and Nevenka.

On 9 April 2021 at 5:23pm, Veselinka sent Branka a WhatsApp message (Veselinka’s WhatsApp message), stating:

It is clear from the context of this message, including the surrounding messages that were also admitted into evidence, that the “she” being referred to is Nevenka. I will not describe or set out in further detail the correspondence within which this statement from Veselinka is nested except to say that around this time Branka and Veselinka were exchanging messages where they appeared to be venting their frustrations about certain aspects of Nevenka’s character and conduct to which they were exposed during certain periods in their adult lives when they were living with Nevenka.

In cross-examination, Veselinka suggested that amidst extensive back-and-forth correspondence with Branka over the phone and via text message around this time, she was simply agreeing with certain claims Branka was making to get Branka off her back or to see “what she was getting at” (T125):

When asked what compelled her to refer to “money […] promised by [Zora]” to Branka in the above WhatsApp message, Veselinka stated that she could not remember specifically what had prompted her to put in print to Branka that Branka would get the money that had been promised to her by Zora (T125–126). Veselinka also stated that Zora had not made any promise to Branka that she would leave her money in the Will in Veselinka’s presence, and that it seemed to her, presented with the text of this WhatsApp message now, that she was just trying to either brush Branka off or placate her (T126).

According to Branka, a short time after Veselinka sent her the above WhatsApp message (and prior to 21 June 2021), she had a conversation with Veselinka which included the following exchange:

Branka relies on Veselinka’s alleged statement as corroboration of Zora’s alleged promise.

Veselinka’s evidence is that she never heard Zora tell Branka or anyone else that she was going to leave a third of her estate to Branka.

In assessing Veselinka’s evidence here, I am conscious of the need to read Veselinka’s WhatsApp message as part of a course of correspondence between her and Branka that was open and genial, reflecting the state of their relationship at that point in time, and within the broader context of the shifting alliances between the three sisters. Noting that tensions were high between Branka and Nevenka around this time (who, at least on Branka’s account, were not speaking to each other), and that Veselinka and Branka appeared to be momentarily “allied” against their older sister, I am minded to weigh this contemporaneous document recording what was said by Veselinka to Branka with that important context in mind. In turn, in all the circumstances, I do not regard as dubious or unsatisfactory Veselinka’s explanation of having said certain things merely to placate Branka or ingratiate herself with Branka. On the contrary, I consider that it is altogether probable that what was said here by Veselinka in Veselinka’s WhatsApp message to Branka bore that very purpose, and does not provide corroboration of Zora’s alleged promise.

For the reasons set out under the heading titled “Consideration” in the section dealing with Issue 1 below, I have also found that Veselinka’s alleged statement was not made to Branka.

On 14 June 2021, Nevenka sent a letter to Branka asking her to vacate the Cowper Street property within two weeks (letter of demand). The letter of demand relevantly stated (quoted exactly as written):

Branka says that she received the letter of demand on 21 June 2021.

There are many assertions contained in the letter of demand, some of which were the subject of separate evidence (such as Branka’s multiple property purchases, Nevenka alleging that Branka said on a number of occasions that she would move into the Prince Street property and Nevenka alleging that Branka behaved aggressively towards her when Nevenka returned from a hospital stay in March 2021), and others which are not (including alleged hip replacements for Branka in 2017 and 2019).

In cross-examination, Branka was asked about the letter of demand and its contents. She again denied that she ever expressed to Nevenka an intention to move out in March 2021 (T46–47). Branka agreed that she did not respond to Nevenka’s letter in writing at the time, nor advert to it in any way (such as by contesting its contents) in her affidavit evidence in these proceedings (T44–45).

On 21 June 2021 between 3:51pm and 4:08pm, Branka and Veselinka exchanged WhatsApp messages regarding the letter of demand as follows (quoted exactly as written):

In cross-examination (T132–134), Veselinka was asked why she had a complete change in attitude towards Branka within such a short period. Veselinka responded by saying “[Branka] was trying to take the house away from me”. Veselinka was then asked, “[h]ow was [Branka] trying to take the house away from you?”. Veselinka gave a lengthy discursive and non-responsive answer to that question, referring to the following conversations she alleged she had with Branka and Goran at about this time:

I have not placed any store in the evidence of these conversations, none of which appeared in any of the multiple affidavits made by Veselinka for the purposes of these proceedings.

Nevenka gave evidence that she carried out further renovations of Unit 3 in 2021 and 2022, and renovations of Unit 2 in 2022.

On 5 January 2022, Nevenka sent Branka and Goran a notice to terminate tenancy agreement (termination notice), requesting that Branka and Goran deliver up vacant possession of the studio by 20 January 2022. The termination notice was expressed as being given on the grounds of:

The termination notice also set out Nevenka’s belief that Branka was renting out the Prince Street property whilst she was living in the studio rent-free and without paying any bills, and Nevenka’s understanding that Branka was receiving a pension despite owning the Prince Street property and therefore in contravention of the law.

In early 2022, Nevenka brought an application against Branka and Goran to commence proceedings in NCAT seeking to exclude Branka and Goran from the Cowper Street property (NCAT proceedings). The precise terms of the application to NCAT are not in evidence.

On 22 February 2022, the then solicitors for Branka and Goran, Peter D White and Co, sent a letter to Nevenka which referred to the NCAT proceedings and enclosed by way of service:

Branka’s statement to NCAT recorded, among other things, Branka’s:

The NCAT proceedings were listed for contested hearing by telephone on 6 June 2022.

On 9 May 2022, the then solicitors for Nevenka, Farrell Goode, wrote to NCAT in relation to the NCAT proceedings. Farrell Goode’s letter asserted the jurisdiction of NCAT to hear Nevenka’s application and the existence, since January 2009, of a verbal tenancy agreement pursuant to which Branka would have sole occupation of the studio in exchange for the provision of carer services to Zora and contribution to the payment of rates and utility bills and general maintenance and upkeep of the Cowper Street property. Farrell Goode pointed to Nevenka’s actions in separately metering the gas supplied to the studio, the nature of the detached studio residence, Branka’s payment of electricity bills, and the provision of services by Branka (including caring duties and general property maintenance) as indicia of a tenancy agreement under s 13 of the Residential Tenancies Act 2010 (NSW). Farrell Goode also submitted that each change in accommodation on the Cowper Street property by Branka gave rise to a new, separate tenancy agreement commencing from the date of the change in accommodation.

In the course of the hearing before me, both Nevenka and Veselinka were cross-examined on the circumstances by which Nevenka came to instruct Farrell Goode to represent her in the NCAT proceedings. It emerged that Farrell Goode (a firm of solicitors located in Temora, near to where Veselinka lives) were engaged on the recommendation and/or suggestion of Veselinka, and that either or both Nevenka and Veselinka gave instructions and conveyed information to Farrell Goode.

Nevenka and Veselinka were also cross-examined extensively on the contents of Farrell Goode’s letter of 9 May 2022 to NCAT (authored by Mr James Read, solicitor). When asked about the inclusion of certain factual matters in that letter, Nevenka gave the following responses (T96–99):

When asked about the references in Farrell Goode’s letter of 9 May 2022 to the performance by Branka of general maintenance at the Cowper Street property, payment of electricity and gas charges and provision of care to Zora, and whether these stood out to her as incorrect (given her evidence in the present proceedings that Branka never did any of those things), Nevenka stated that although she likely had read the letter prior to its being sent to NCAT and had instructed Farrell Goode, these inaccuracies did not jump out at her and she could not explain how they had made their way into Farrell Goode’s letter (T108–109). Nevenka was circumspect in her evidence about having corresponded with Mr Read of Farrell Goode, stating (variously) that she had provided him with instructions but that she did not recall speaking with him directly, that she had conveyed information to Mr Read via Veselinka who did speak with him directly, and that she did not recall giving him information of the kind that appeared in the 9 May 2022 letter (T95–102).

In cross-examination, Veselinka stated that the information contained in Farrell Goode’s 9 May 2022 letter likely came from her, or from both her and Nevenka, and that she recalled sitting in the car on one occasion while Nevenka spoke to Mr Read on the phone (T119).

I note the discrepancies in the recollections of Nevenka and Veselinka as to who exactly spoke to Mr Read and supplied the information forming the basis of the 9 May 2022 letter to NCAT. I do not consider this to be especially significant. That said, I do regard as significant, and as bearing on any assessment of the credibility of each of them as witnesses, the fact that their evidence and the case put by them in the NCAT proceedings (as disclosed by the 9 May 2022 letter and related contemporaneous documents) differs so vastly from that advanced in these proceedings. As emphasised by me in the course of the hearing, the material originally placed before NCAT and now admitted into evidence in these proceedings is not to be taken as incontrovertible evidence of the truth of what it says, but rather as evidence of what was held out to be the factual scenario before NCAT (as is the proper approach to be taken in respect of prior inconsistent statements: Evidence Act 1995 (Cth), s 38(3); Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332, Ward JA (as her Honour the President of the Court of Appeal then was) at [77]). On that basis, I am minded to treat the 9 May 2022 letter (at its highest) as damaging to the credit of Nevenka and Veselinka generally.

On 30 May 2022, Branka wrote directly to NCAT and submitted, among other things, that the dispute the subject of the NCAT proceedings had nothing to do with any alleged residential tenancy agreement but rather concerned “life tenancy / life estate / proprietary estoppel”.

On 6 June 2022, orders were made in the NCAT proceedings. Finding that the tribunal lacked jurisdiction, there being no evidence of an intention to create legal relations in relation to Branka’s living arrangements at the Cowper Street property, NCAT dismissed Nevenka’s application.

According to Branka, on 1 June 2022 she sent Nevenka a letter requesting a copy of the Will, to which Nevenka never responded. Branka says that she then, on 3 June 2022, applied to this court for a copy of the probate of the Will, which she received on 22 June 2022.

Branka states that the first time she read a copy of the Will was upon receipt of the probate by her on 22 June 2022.

On 24 August 2022, the solicitors for Nevenka and Veselinka, Adams & Co, sent a letter to Branka advising that if she did not leave the Cowper Street property by 5pm on 10 September 2022 (within 14 days), Nevenka and Veselinka would commence proceedings in this court seeking possession of the Cowper Street property and Branka’s exclusion from the Cowper Street property. In the letter, Adams and Co also noted that they would seek indemnity costs upon the conclusion of any such proceedings and asked that any future correspondence between the parties be conducted via their respective lawyers.

On 3 November 2022, Nevenka and Veselinka commenced the present proceedings by filing a statement of claim in this court seeking, among other things, the following relief:

On 5 December 2022, Branka filed a cross-claim against Nevenka (in her personal capacity and in her capacity as executrix of Zora’s estate) and Veselinka, seeking the following relief:

Nevenka says that she has spent a total of $562,501.32 on renovations of the Cowper Street property, in the following years and amounts:

On 17 June 2024, real estate agency MGM Martin sent a letter to Nevenka providing their estimate of the Cowper Street property’s current market value of around $4.9 million (Cowper Street property valuation). At the hearing before me, the parties indicated an agreed value for the Cowper Street property, in the current market, of $5 million (T145).

On 17 June 2024, MGM Martin sent a letter to Branka providing their estimate of the Prince Street property’s selling price in the current market of around $1.25 million (Prince Street property valuation). This is $310,000 more than Branka paid for the acquisition of the Prince Street property in October 2019.

Branka gave evidence that in about 2001, at the time she moved into the Cowper Street property, she was employed as a payroll manager. Branka says that she retired in 2016. Nevenka says that Branka did not retire until March 2019, while Ms Colnan gave evidence that Branka was in full-time employment until about 2018.

Branka’s net monthly income is $2,321.06 a month. Her financial position can be summarised as follows:

Nevenka retired from full-time work in 2006, aged 55 years.

Nevenka’s net monthly income is approximately $7,256.48. Her financial position can be summarised as follows:

In cross-examination, Nevenka accepted that her and Veselinka’s estimated plumbing expenses of $506 a month — calculated by dividing the total amount of their expenditure over the past 12 months to address the penetration of the sewer at the Cowper Street property by a neighbour’s tree — would not be ongoing (T114–115).

In relation to her health and medical circumstances, Nevenka says that since late 2019 when she suffered a lung infection, her lungs have been reinfected numerous times with antibiotic resistant bacteria and that she takes regular medication. Nevenka has been diagnosed with a chronic medical condition called bronchiectasis and her prognosis is uncertain. Nevenka says that in the future she will require a nurse to administer medication and treatment at her home and is also considering treatment overseas.

Nevenka estimates her future expenses as follows:

In cross-examination, Nevenka accepted that the council had not yet given approval for the tree to be removed, and that the identified amount of $5,000 could be treated as a contingency amount (T115–116). Nevenka also accepted that she had not produced any documentation in support of the estimated amounts associated with, and the need for, each of the dental implants, domestic assistance, and bacteriophage treatment (T116).

Veselinka retired from work in 2006.

Veselinka’s financial position can be summarised as follows:

In relation to her health, Veselinka states that she has a number of medical conditions which currently require treatment and will continue to pose a financial burden in the future. These include a disease affecting her colon and digestive tract, a prolapsed disc in her back (for which she takes pain medication and which may require surgery), type 2 diabetes and hypertension. Although minimal, Veselinka’s current monthly expenses for medication of $26 and doctors’ fees of $20.83 may increase in the future.

There was no dispute between the parties as to the legal principles to be applied in determining Branka’s proprietary estoppel claim. I have outlined these below.

In Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7, Brennan J at 428–429 gave a classic formulation of the fundamental elements of equitable estoppel:

The principles were posed slightly different in Walton Stores by Mason CJ and Wilson J in their joint judgment, fixing upon a common thread of unconscionability between instances of promissory estoppel and proprietary estoppel or estoppel by acquiescence, saying at 404 (citations omitted):

At 406, Mason CJ and Wilson J went on to state the relevant principles to be as follows (citations omitted):

In Pirrottina v Pirrottina [2024] NSWSC 558, a case to which each of the parties referred in their submissions, Rees J collected the relevant principles of proprietary estoppel. At [160], citing Ball J in Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603 at [60]–[73], her Honour identified estoppel by encouragement as a subvariant of proprietary estoppel and noted that an estoppel by encouragement:

A substantially similar definition of estoppel by encouragement was given by Handley AJA (with whom Allsop P and Giles JA agreed) in Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 at [21].

In Pirrottina, Rees J proceeded to explicate the main elements of estoppel by encouragement, observing that these elements frequently overlap. Her Honour pinpointed unconscionability — in the sense of whether it would be unconscionable to permit departure from the encouraged expectation — as the essential concern of the doctrine, stating at [161]:

Recently, in Slade v Brose [2024] NSWCA 197, Ward P (Stern and White JJA agreeing) at [198]–[201] gave the following comprehensive statement of the principles relating to proprietary estoppel and estoppel by encouragement:

The foregoing authorities make clear that an equitable estoppel claim is not to be determined in a formulaic or unduly mechanistic manner, although it should be assessed by reference to its relevant component parts (each of which are described below).

It is well-established in the law on equitable estoppel that in situations involving family members (as opposed to businesspeople in a commercial context), the relevant assurance or representation need not rise to the level of certainty sufficient to ground, for example, a contractual obligation: Wantagong at [63]. Rees J in Pirrottina articulated the rationale for this distinction, stating at [163]:

The authorities provide that the promise must nonetheless possess some degree of clarity, be unambiguous, and be intended to be taken seriously; in other words, it must be “a promise which one might reasonably expect to be relied upon by the person to whom it was made”: Wantagong at [63], citing Thorner v Major [2009] UKHL 18; 3 All ER 945, Lord Walker of Gestingthorpe at [56]; Pirrottina at [162]. As indicated by Ball J in Wantagong at [63], citing Sullivan v Sullivan [2006] NSWCA 312, Hodgson JA at [85], the certainty of the assurance may be ascertained by assessing the reasonableness of the representee’s interpretation of the assurance and their reliance on it.

On the particular attributes of a promise capable of founding an estoppel, including the requisite degree of specificity as to what is being promised, Ward P in Slade stated at [202]–[206]:

Reliance by the representee on the representation must be established both as a matter of fact, and by determining whether the representee would have conducted themselves differently had the representation not been made, or had the representor advised at the outset that the assurance would not be honoured: Wantagong at [83]; Pirrottina at [166].

In Slade, Ward P considered the element of reliance in the context of estoppel by encouragement, and, internal to that inquiry, the question of causation, referring to the reasoning of the plurality in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 and stating at [239]–[244]:

Bringing together these principles, Ward P in Slade at [245] framed the causation question as follows:

The necessary requirement in proprietary estoppel of material detriment to the representee has been articulated in terms of a finding that the representee would have been “better off” had they not relied on the representation: Wantagong at [90]; Pirrottina at [167]. The detriment in question must be substantial, and is not merely the loss flowing from non-fulfilment of the promise, or the loss of what the representee expected to receive, but rather depends on whether it would be unjust or inequitable in all the circumstances to allow the assurance to be disregarded: Wantagong at [68]–[69]; Pirrottina at [167].

Ward P in Slade at [274]–[275] clarified the test:

As to how any benefits obtained by the representee through their reliance on the alleged promise are to be accounted for in the analysis of detriment, Ward P at [285] remarked that such “countervailing benefits” are more relevant to the consideration of the unconscionability of departure from the promise than to the issue of detrimental reliance. Ward P at [285] and [287] also noted that:

Pirrottina concerned a dispute between two brothers, Rocco and Saverio (Sam) Pirrottina, who were engaged in citrus production at orchards located on a farm known as the Mangrove Mountain farm as part of a business that was effectively gifted to them by their parents some 20 years ago. One of the questions to be determined by Rees J in the proceedings was whether Sam held an equitable interest in an acre of land at the Mangrove Mountain farm (“the Lot”) on which he had lived for 28 years, as a consequence of representations made by his parents to the effect that the Lot and the house located on it were his (at [2]). The evidence before Rees J was that Sam forfeited various opportunities in reliance on his parents’ representations. At [177]–[178], her Honour considered the ways in which Sam had both benefitted from and suffered detriment as a result of his reliance on his parents’ assurances in respect of the Lot, stating (emphasis added):

As the authorities make clear, in the context of equitable estoppel, unconscionability in the sense of disconformity with notions of good conscience must be the ultimate effect produced by each of the above elements in combination: Pirrottina at [161]. At [166], Rees J in Pirrottina, paraphrasing the language of the plurality in Sidhu at [77], observed that:

It is also well-established that unconscionability is neither an abstract or technical concept, nor some “universal standard”; its presence is to be determined by reference to all the circumstances, including the reasonableness of the representee’s conduct in acting on the assumption, and the nature and severity of the detriment that the representee would sustain in so acting if departure from the assumed state of affairs were allowed (Commonwealth v Verwayen (1990) 170 CLR 394, Deane J at 445; [1990] HCA 39, cited in Standard Chartered Bank Aust Ltd v Bank of China (1991) 23 NSWLR 164, Giles J at 180). As Allsop P stated in Delaforce at [3]:

In oral argument and cross-examination of Nevenka and Veselinka, Branka leaned heavily on what she referred to as the “chronology”, being the lapse of time between Branka first taking up residence at the Cowper Street property in around 2001, and action taken by Nevenka and Veselinka to evict Branka from the Cowper Street property beginning in 2021. Branka framed this 20-year gap as significant because it is logically consistent with an invitation, and/or acquiescence and encouragement, by Nevenka and Zora for Branka to live at the Cowper Street property (T1), and with a family arrangement pursuant to which Branka lived at and performed work on the Cowper Street property and was a contributing member of the family (T148). At the outset, I note that this construction, adopted by Branka, of the living arrangements and family relationships that obtained over the relevant period does not favour either party’s case over the other, in circumstances where Nevenka and Veselinka contend that Branka had a tenancy at will, and Branka claims a right of sole occupancy in respect of the studio.

In short, Branka’s estoppel claim is based on the following:

Branka submits that each of the above elements satisfy the three components of a proprietary estoppel claim, being an assurance, reliance and detriment (Pirrottina, Rees J at [161]), and also make it unconscionable in all the circumstances for the alleged representations to be departed from.

The submissions of Branka on the representations on which she relies go to the existence of two species of proprietary interest which she says she was promised: first, a right to occupy the studio on the Cowper Street property, and second, a percentage interest in the Cowper Street property itself. The precise representations relied upon by Branka are as follows:

Branka submits that each of the above representations are actual statements; that is, Branka’s estoppel case is not one that rests on purported representations capable of being implied by conduct, of the kind described by Rees J in Pirrottina at [155] (T165–166).

In terms of reliance, Branka submits that she remained at the Cowper Street property, performed work (including renovations and construction) on the Cowper Street property (which Ms Meddows and Ms Colnan witnessed), and provided assistance to Zora in reliance on the above representations and assurances (T163).

Branka contends, for instance, that she stayed living at the Cowper Street property in reliance on Nevenka’s first alleged studio representation. She notes that when she intended to move out of Cowper Street property and into the King Street property in 2006, Nevenka said to her words to the effect that she would construct a studio above the garages for Branka to live in, so that Branka would agree to stay with them, and that Branka altered her position in reliance on that promise.

Branka submits that the detriment that will be visited upon her should Nevenka and Veselinka be permitted to resile from the alleged representations must be viewed not merely in financial terms, but also as encompassing emotional and other kinds of detriment (T162), although this submission was not developed beyond that bare assertion.

Regarding the issue of the potential benefit that Branka has derived from living at the Cowper Street property, Branka resisted the suggestion that living at the Cowper Street property, where she paid neither rent nor any living costs, enabled her to build up a property portfolio. She submitted that no necessary nexus between her rent-free status and her acquisition of a property portfolio (or at least her ability to trade in properties) can be drawn, particularly in circumstances where no attempts were made to develop the counterfactual by quantifying the rent that Branka might have paid while resident at the Cowper Street property (T157–158). She says that while her ability to acquire a property portfolio is a relevant consideration, it should not be treated as cancelling out, or converting any detriment she may suffer into an advantage (T158). Also emphasised by Branka is the fact that while she did acquire properties, she acquired those properties to house Goran and his family (T157).

While accepting that from time to time she had tenants in her properties paying rent, and that there was some financial benefit to her in being able to live rent-free at the Cowper Street property, Branka submits that the court should look at the whole of the circumstances. In all of the circumstances, Branka says, it cannot be said that living at the Cowper Street property has been to her advantage (T159). On the contrary, she says, remaining in a situation where she was required to move between parts of the Cowper Street property (T162), and sometimes live in quite difficult circumstances (particularly during the period she was living in Zora’s second bedroom in Unit 3 (T157)) has been — and will be — to her detriment, if she is deprived of the proprietary interests in the Cowper Street property that she alleges she was promised.

In relation to detriment, Branka also pointed out (although this submission was neither developed nor elaborated upon) that she intended to move out of the Cowper Street property into the Dutruc Street property (in 2004) and later into the King Street property (in 2006); however, she remained living at the Cowper Street property on both occasions due to alleged entreaties by Nevenka and Zora that she continue living with them (T147). From the tenor of this submission, the essential argument appears to be that Branka forewent opportunities on both occasions to establish herself in one of her own properties, did so (at least on the second occasion, around which time Nevenka’s first alleged studio representation and Zora’s alleged promise were made) in the expectation of receiving proprietary interest(s) in the Cowper Street property, and that this should now figure in my consideration of how Branka will be disadvantaged by the non-fulfilment of those promises.

Branka submits that it would be unconscionable for the alleged representations to be departed from here because of the abovementioned acts done by her in the expectation encouraged in her of receiving a 12.5% interest in the Cowper Street property and an open-ended right of sole occupation of the studio (T163).

In terms of acquiescence in Zora’s alleged promise on the part of each of Nevenka and Veselinka, Branka points to:

These instances of acquiescence by Nevenka and Veselinka, Branka submits, go to the unconscionability of them now departing from the alleged representations.

Nevenka and Veselinka submit that Branka’s proprietary estoppel claim must fail, principally on account of the absence of any detriment suffered by Branka, although they also dispute that the representations and assurances relied upon by Branka were made as alleged and do not accept that there was reliance on those alleged representations.

On the representation element, Nevenka and Veselinka contend that the fact that Branka was permitted to reside at the Cowper Street property between 2001 and 2021, without objection from Nevenka and Veselinka, is not determinative and indeed is immaterial because such a circumstance is equally referable to there being a tenancy at will. They argue that being permitted to reside at the Cowper Street property for any length of time does not necessarily carry with it a right on the part of Branka to remain at the Cowper Street property for as long as she desires.

To my mind, this is at least in part a moot point: the case put by Branka is explicitly framed in terms of representations in the form of express statements, rather than conduct by Nevenka and Zora. That is, Branka does not identify the conduct of Nevenka, Veselinka and/or Zora in allowing her to occupy the Cowper Street property for an extended period as a material representation that lead to her developing an expectation of a proprietary interest in the Cowper Street property. Moreover, as stated above, I am satisfied that the asserted “family arrangement” is legally consistent with Branka occupying the property either as a tenant at will or as the holder of a right of sole occupancy of the studio.

As to the making and content of an assurance capable of founding an estoppel, Nevenka and Veselinka accept that where the parties involved are family members (as here), the law does not require certainty in the promise or representation. They observe that the representation must nonetheless be unambiguous and appear to have been intended to be taken seriously.

In relation to Nevenka’s first, second and third alleged studio representations, Nevenka and Veselinka assert that statements to that effect — promising Branka a right to occupy the studio indefinitely — were never made. They have pointed to various factors which, they say, detract from or contradict Branka’s account, including the following:

Nevenka and Veselinka also contend that even if Nevenka had made the studio representations, the effect of those representations was not to promise a proprietary interest in the Cowper Street property of the kinds to which Branka now lays claim. For instance, they say that the words attributed to Nevenka comprising Nevenka’s first alleged studio representation — “I will build a studio over the garage and you can live there” — are not to be interpreted as a promise of a right of sole occupation of the studio forever (T171). Nor, they say, should the evidence given by Goran, Ms Colnan and Ms Meddows of discussions witnessed by them, where Nevenka is alleged to have stated that the studio was being built for Branka to move into and/or live in, be treated as corroborative of a promise of a proprietary interest in the studio having been made by Nevenka. Nevenka and Veselinka submit that that evidence, if accepted, can go no further than confirming that the studio was to be made available for Branka to live in — not that the contemplated arrangement involved an indefinite right of occupation (T172–173).

Nevenka and Veselinka take a similar position regarding Zora’s alleged promise. They assert the improbability of Zora promising one-third of her three-eighths share in the Cowper Street property to Branka, in circumstances where, at that time, Branka owned a property (the King Street property) that she could move into. In other words, they say that there was no need to make any assurances about Branka’s future living arrangements of the kind Zora is alleged to have made.

In respect of Veselinka’s WhatsApp message, which Branka cites both as an instance of Veselinka acquiescing in (or encouraging the expectation induced by Branka as a result of) Zora’s alleged promise and as corroborative evidence of that promise, Nevenka and Veselinka say the text of the message is not corroborative of Zora’s alleged promise (that Branka would receive a 12.5% interest in the Cowper Street property) because it is a vague and uncertain reference. They compare Veselinka’s reference in the message to “money that was promised by mum”, with the more precise language of “your share of the house”, which was not used (T174).

As a final point on the representation element, Nevenka and Veselinka submit that the court should have regard to the position taken by Branka at the time the NCAT proceedings were commenced. They note that at that time, she asserted her entitlement to remain living in the studio on the Cowper Street property on the basis of adverse possession, rather than by reference to an express promise that she could continue to occupy the studio for as long as she wished. They refer to Branka’s statement to NCAT and her construction of her rights in the NCAT proceedings, based on advice provided to her by her legal advisers at the time:

Nevenka and Veselinka submit that the issue of reliance is to be approached by asking, first, whether Branka in fact relied on the alleged representations, and second, whether Branka would have acted differently if the alleged representations had not been made, citing Wantagong at [83] and Pirrottina at [166]. While maintaining that reliance cannot be demonstrated in this case, the material representations themselves having not been established, Nevenka and Veselinka submit that Branka, in any event, would not have acted differently if the alleged representations had not been made or she had been told that those representations would not be honoured.

In this connection, Nevenka and Veselinka submit that Branka would have done those things that Branka pinpoints as acts of reliance — namely, staying at the Cowper Street property, maintaining and renovating the Cowper Street property and performing other acts of service such as supporting and caring for Zora —irrespective of any promise or expectation of a proprietary interest in the Cowper Street property. They state that it was in Branka’s economic interests to remain living at the Cowper Street property for the following reasons:

Nevenka and Veselinka say that these factors go some way towards demonstrating that Branka would have remained living at the Cowper Street property notwithstanding the absence of any expectation on Branka’s part of receiving a proprietary interest in the Cowper Street property. They state that Branka’s occupation of the Cowper Street property was independent of any representation made to her.

In addition, it is submitted that Branka would have contributed in certain ways to the family, helping with renovations and providing assistance to Zora, whether she lived at the Cowper Street property or not. Nevenka and Veselinka point to Branka’s agreement, in response to questions put to her in cross-examination, that she could and would likely have continued to help Nevenka, Veselinka and Zora if she had been living at the Dutruc Street, King Street or Alison Road properties between 2001 and 2021 (T35), for “family reasons”.

They point to Branka’s acceptance, in cross-examination, that Nevenka assisted Branka with renovations of the Clovelly Road property because she was being a good sister, and say that in the same way, Branka helped with the renovations of the Cowper Street property including the studio (T181). The rendering of this assistance by Branka, they say, was done neither in reliance on Zora’s alleged promise or Nevenka’s first, second and third alleged studio representations, nor to her detriment.

Moreover, Nevenka and Veselinka submit that other incentives for Branka to perform the renovations and assist with the construction of the studio existed. They argue that the situation whereby Branka was permitted to occupy the studio as a bare licensee, for a period terminable at the discretion of the owner, provided her with an incentive to contribute to the construction of the studio and renovations of the Cowper Street property and ensure that the work was done sooner rather than later. While conceding that Branka’s assistance with the renovations was not inconsistent with reliance by her upon the alleged representations, they submit that Branka has not demonstrated that she performed work on the Cowper Street property in reliance on the alleged representations as opposed to an expectation of occupying the studio as a tenant at will, and say that this is a question of causation in the reliance that has not been established (T182–183).

On the question of detriment, Nevenka and Veselinka identify the relevant inquiry as whether Branka would have been better off had she not relied on the alleged representations, citing Wantagong at [90] and Pirrottina at [167]. They note, further, that this element is only capable of being satisfied by a detriment that is substantial (per Pirrottina at [167]).

Their argument is that rather than suffering a detriment by reason of her purported reliance on the alleged representations, Branka has substantially improved her financial position, contending that living rent-free at the Cowper Street property between 2001 and the present day was and has been to Branka’s advantage. In this regard, they submit that in setting up the different properties owned by her at different points in time as investment properties (rather than living in them), Branka has been able to use the rental income to pay off the mortgages over those properties, such that she now owns the Prince Street property outright, unencumbered by a mortgage, and is in a position to provide the Prince Street property to Goran and his family as rent-free accommodation.

On the question posed to the parties by me at the hearing, of how the court ought to bring to account the benefit that Branka has derived from living rent-free at the Cowper Street property, counsel for Nevenka and Veselinka itemised the properties bought and sold by Branka between 1988 and 2020 (T177, T186–187), noting:

Based on this, Nevenka and Veselinka submit that there has been significant financial gain by Branka in holding these various properties, and while it is not a simple mathematical exercise of subtracting the first purchase price of each property from the property’s current value, when one considers that 12.5% of the value of $5 million (the estimated value of the Cowper Street property) is $625,000, the increase in value from Branka’s property holdings obtained over time far exceeds her claim for $625,000 (the economic value of a one-eighth share in the Cowper Street property).

As to Branka’s ability to provide a home (the Prince Street property) for her son and his family, and to know that they are being housed, Nevenka and Veselinka identify this as a further benefit Branka has derived from living rent-free at the Cowper Street property, but not one that is readily quantifiable. In their submission, this benefit is ultimately a corollary of the benefit she has obtained of being able to discharge the mortgage over the Prince Street property, and use the now unencumbered property in any way she wishes (T179).

In relation to acts of service to the family which Branka suggests were undertaken in reliance on Nevenka and Zora’s alleged assurances, Nevenka and Veselinka observe that, as Branka herself accepted in cross-examination, this care and assistance (to the extent it was provided) was provided for “family reasons” and would have been provided by her even if she did not live at Cowper Street. Accordingly, they submit, insofar as Branka accepted that she would have engaged in those acts in any event, it cannot be said that Branka would have been better off for not having relied on the alleged representations, nor can it be said that those acts were undertaken in circumstances of detrimental reliance.

Finally, Nevenka and Veselinka note that the three overlapping elements of representation, reliance and detriment comprising an estoppel are all directed to the overarching question of whether it would be unconscionable to permit departure from the encouraged expectation (citing Wantagong at [62] and Pirrottina at [161]).

On the question of unconscionability, Nevenka and Veselinka’s primary submission is that, assuming I am against them on the issues of representation, reliance and detriment, in the circumstances of this case, it is not unconscionable for Zora’s alleged promise and Nevenka’s first, second and third alleged studio representations to be departed from, owing to the benefits that have flowed to Branka to date in connection with her occupation of the Cowper Street property. They say that what she has gained from living at the Cowper Street property is a crucial consideration in determining this issue.

Having reviewed the principles set out above and each of the parties’ submissions in respect of Branka’s estoppel claim, in my opinion this is not a case in which equity will intervene to protect the proprietary interests to which Branka lays claim. The essential (although not the sole) basis for my conclusion is the distinct lack of detriment suffered by Branka, a matter on which I wholly agree with the submissions advanced by Nevenka and Veselinka. In the interests of completeness, however, I will set out my findings in respect of each limb of the claim in full.

I will deal firstly with the representations alleged to have been made by Nevenka. As a matter of fact and on the balance of probabilities, I have found that one or more representations along the lines of Nevenka’s first, second and third alleged studio representations were made by Nevenka to Branka in the period immediately preceding and the period following the construction of the studio on the Cowper Street property. However, I do not consider that any of Nevenka’s first, second or third studio representations extended beyond representations that Branka would be able to live in the studio, in the sense of constituting a promise of some form of ownership interest in the studio (and therefore the Cowper Street property). In my opinion, Nevenka was prepared to allow Branka to live in the studio but nothing more, and any statements she made to Branka were consistent with that position.

I do not consider that Branka’s statement to NCAT asserting her entitlement to remain in the studio on the basis of her continuous occupation of the studio since 2008 (adverse possession), as opposed to an express promise that she could continue to occupy the studio for as long as she wished, makes that finding untenable. The fact that Branka, at the time the NCAT proceedings were on foot, adopted a legal construction of her asserted proprietary interest in the Cowper Street property that is different to that adopted by her in the present proceedings is, to my mind, of little consequence. That is because she adopted that construction of her proprietary interest in the studio on the basis of legal advice she received at that time in connection with the NCAT proceedings. I reject Nevenka and Veselinka’s submission that Branka’s statement to NCAT should be treated as a concession that she did not have their express permission to live on the property and therefore as ruling out, as a matter of fact, Nevenka’s having made some form of the alleged studio representations.

It then falls to be determined whether those statements — to the effect that the studio was for Branka to live in — rise to the level of certainty required to constitute a promise of a proprietary interest in the form of an open-ended right of sole occupation of the studio capable of founding an estoppel, as contended for by Branka. On this question, I bear in mind the remarks of Lord Walker in Cobbe at [68], reproduced by Rees J in Pirrottina at [163], regarding representations made by one family member to another:

In my opinion, Nevenka’s alleged studio representations do meet the relevant certainty threshold, for several reasons.

First, I note that the requirement of certainty for a promise in a proprietary estoppel claim is less stringent than in other kinds of estoppel (Slade, Ward P at [202]), and less stringent again in domestic cases (Pirrottina, Rees J at [163]).

Secondly, I consider that representations by Nevenka that the studio was for Branka to live in, or words conveying a similar sentiment, are clearly capable of denoting an indefinite right of sole occupation of the studio, and that it was reasonable in the circumstances for Branka to attach and rely on that meaning (see Galaxidis v Galaxidis [2004] NSWCA 111, Tobias JA at [93]). While imprecise and not self-evidently corresponding with any singular, defined category of proprietary interest at law, Nevenka’s alleged studio representations do convey either or both that the studio was being constructed for the very purpose of housing Branka, and/or with her accommodation in particular in mind, which I regard as consistent with and capable of supporting a reasonable expectation of a right of sole occupancy.

Moreover, I am not persuaded by the submission put by Nevenka and Veselinka that the words attributed to Nevenka by Branka as well as independent and semi-independent witnesses go no further than suggesting that the studio was to be made available for Branka to live in, or that she was to occupy the studio as a tenant at will, given that those words are clearly also capable of bearing the meaning contended for by Branka, and that is all that is needed by way of certainty in the circumstances. In my view, a sufficiently clear and definite promise was made to Branka by Nevenka, and the substance of that promise was repeated to others including Goran, Ms Meddows and Ms Colnan, which suggests to me among other things that it was intended to be taken seriously. That suffices, notwithstanding what was promised was not precisely defined (Slade at [202]), articulated in lawyerly language or readily reducible to a lawyer’s categories of analysis (Evans at [116]).

Turning to Zora’s alleged promise, I am not persuaded by Nevenka and Veselinka’s submission as to the inherent improbability of Zora having promised to give Branka one-third of her three-eighths share in the Cowper Street property. Although Branka owned a property (the King Street property) that she could have moved into at the time Zora is alleged to have made the relevant representation, and there was, strictly-speaking, no need to make any assurances about Branka’s future living arrangements of the kind Zora is alleged to have made, it is not the case that such a promise from Zora is illogical in the context of all that was going on within the family and the living arrangements that were in place at that time. In this, I refer to the status quo that had been established by this point (some five years after Branka first moved into the Cowper Street property), whereby Branka lived at Cowper Street while trading in properties and supporting Goran, who relied on Branka to provide him with accommodation. As I have stated above, I am satisfied that this informal arrangement was to Branka’s distinct advantage, and that she was concerned to sustain it so long as it suited her.

I am also satisfied that, whether I accept Branka’s narrative that Zora and Nevenka wanted Branka to remain living with them and insisted that she do so, or prefer instead Nevenka’s version of events, pursuant to which she passively and/or begrudgingly allowed Branka to continue living at the Cowper Street property, the evidence discloses at a minimum that Branka was permitted to occupy the Cowper Street property on more than a temporary or short-term basis. In those circumstances, and in circumstances where Branka had taken it upon herself to prop up her son, who was not self-sufficient, and Nevenka and Zora were alive to that undertaking by Branka, I consider that the possibility of Zora making a promise to make provision for Branka in her will in the manner alleged is not necessarily foreclosed.

Against this, I note that the only corroborative evidence available in respect of Zora’s alleged promise is that of Goran. As I have stated above, I do not regard Goran as an independent witness and am conscious that his evidence in these proceedings has at all times been closely tied to that of Branka, which serves his own purposes and interests as well. For that reason, I do not place much store in what he has to say on this matter.

I also do not regard Veselinka’s WhatsApp message and Veselinka’s alleged statement as corroborating Branka’s account of Zora’s alleged promise. In respect of Veselinka’s alleged statement, that is simply because I will not treat Branka’s (disputed) evidence of words allegedly spoken by Veselinka as lending any additional credibility to Branka’s own (disputed) account of words allegedly spoken by Zora. In respect of Veselinka’s WhatsApp message, as I have noted above, I accept Veselinka’s explanation of having written what is set out in Veselinka’s WhatsApp message to placate Branka or ingratiate herself with Branka. I do not, however, make this finding on the ground identified by Nevenka and Veselinka that Veselinka’s reference in her message to “money promised by mum” cannot be taken as corroborating an alleged promise of a percentage interest in the Cowper Street property. That is because Veselinka’s WhatsApp message, when read in full and in its context — including the qualifying phrase “when the house gets sold” —, must be read as contemplating the conversion of a proprietary interest into a liquid asset upon the sale of the Cowper Street property. I do not consider that this is too great a stretch, particularly since the message’s author, Veselinka, is a non-lawyer and was not communicating in a context where such distinctions matter.

While I do not consider the evidence of Nevenka and Veselinka (on this matter or any other) to be an especially solid basis to which to anchor my factual findings (given their demonstrated propensity to controvert Branka’s evidence even where that evidence has been corroborated by persons independent of the family), I do consider that other elements of the factual matrix make it objectively improbable that Zora would have promised Branka a share in the Cowper Street property.

For instance, I put considerable store in the available documentary evidence, and the fact that Zora’s testamentary intentions as disclosed by the earlier will and the Will did not extend to making provision of any kind for Branka. The evidence before me is that Branka was omitted from two successive iterations of Zora’s will, which suggests to me a consistent and conscious choice by Zora to exclude her. Another relevant factual matter is the previous dispute between Zora, Nevenka and Veselinka on one side and Branka on the other regarding the predecessor family property in Avoca Street in or around October 1983. This earlier dispute points to an instance of unhappy dealings with real property within the family, where they all had an ownership interest, in circumstances where Branka was — actually or notionally — set against her mother and sisters.

The previous dispute concerning the Avoca Street property probably explains why Branka was not a registered proprietor of the Cowper Street property together with her mother and sisters and was not given any beneficial interest in the Cowper Street property in the earlier will or the Will by Zora. It also gives added force to the inherent unlikelihood that Zora’s alleged promise of an interest in the Cowper Street property was ever made to Branka.

With the above context informing my assessment, I cannot be satisfied on the balance of probabilities that Zora made an assurance of the kind alleged by Branka in the form of Zora’s alleged promise that Branka would receive one-third of Zora’s share in the Cowper Street property. I note in this regard that allowing Branka to live at the Cowper Street property, even in a studio constructed for that very purpose, and giving her a percentage interest in that property are two distinct things, and the making of such a promise does tend to defy the general logic of events and relevant aspects of Zora’s behaviour as just described. Accordingly, I consider that although there is strictly no need to determine that aspect of Branka’s estoppel claim based on Zora’s alleged promise any further, in case I am wrong in this conclusion, I have addressed the other elements of that claim below.

For Branka’s estoppel claim to succeed, I must be satisfied on the balance of probabilities that she performed certain acts in reliance on Nevenka’s alleged studio representations, and that those representations were a contributing cause that influenced Branka’s course of action in a significant or material way, such that she would have acted differently had those assurances not been given and the induced assumption of a proprietary interest in the studio not been held (Slade, Ward P at [245]).

On this question, I substantially agree with the submissions advanced by Nevenka and Veselinka. I am not satisfied that reliance on the part of Branka is established, mainly because causation in the requisite sense is absent. In my view, Branka would have done the acts pinpointed by her as acts of reliance — continuing to live at the Cowper Street property beyond 2006, contributing to renovations and construction on the Cowper Street property, and providing some level and form of assistance to Zora — even if Nevenka had not made the alleged studio representations.

Branka’s ability to live rent-free and without any meaningful outlay at the Cowper Street property while trading in properties and/or acquiring properties for Goran and his family to live in at different points in time provided a powerful economic incentive for her to remain at the Cowper Street property. Aside from and independently of any promise of a defined proprietary interest or legal right of occupation, the informal arrangement pursuant to which Branka occupied the Cowper Street property prior to 2006 was undoubtedly to her advantage, notwithstanding it was legally precarious because it was subject at all times to the will of Zora, Nevenka and Veselinka as the Cowper Street property’s registered proprietors. No real attempt was made by Branka to reckon with this fact, and no submissions directly dealing with the issue of causation (other than mere assertions that she intended at different points in time to move out) were put by her. I consider this to be unsatisfactory, given the obvious extant reasons Branka had for remaining at the Cowper Street property and the need to show that but for Nevenka’s alleged studio representations, Branka would not have so remained or would otherwise have adopted a different course.

In my view, Branka has also failed to show that she contributed in particular ways to the family, helping with renovations and providing assistance to Zora, by reference substantially to an assumed state of affairs in accordance with which she was to receive a proprietary interest in the studio. That is so in circumstances where, by her own account and consistently with the narrative she presented in evidence, she was living at Cowper Street with Nevenka and Veselinka “as family”. Moreover, in circumstances where Branka was already residing rent-free at the Cowper Street property on more than a temporary basis, and for that reason had an interest in seeing that the Cowper Street property was improved and/or added to (including for her own comfort), I am unable to conclude that the induced assumption of an indefinite right of sole occupation of the studio was a contributing cause with a significant effect in determining her conduct here. In this connection, I agree with Nevenka and Veselinka’s submission that Branka has failed to demonstrate that she performed work on the Cowper Street property in reliance on Nevenka’s alleged studio representations as opposed to, for example, an expectation of continuing to occupy the studio as a mere tenant at will, which, among other factors, undoubtedly supplies sufficient grounds for Branka to have pursued the course of conduct that she did.

For the same reasons, if I had found that Zora’s alleged promise was made to Branka, I would also have found that Branka had failed to establish that she had relied on it in the way she contended. I consider that it is likely that Branka would have remained living at the Cowper Street property, contributing to renovations and construction there and rendering some level of assistance to Zora because it suited her economic and family interests to do so, not because she was relying on Zora’s alleged promise.

If my conclusion as to reliance is incorrect, I am satisfied that Branka’s estoppel claim should nonetheless fail owing to the lack of any substantial detriment that she will suffer if Nevenka is permitted to resile from the alleged studio representations. My reasoning on this point also provides an answer to the question of unconscionability, and it is apt for me to address the two elements in tandem given the cross-over of the relevant considerations.

To my mind, even if it is accepted that Branka relied on Nevenka’s alleged studio representations in the relevant sense, it is difficult to see how that reliance will have been to her detriment if those representations are departed from. I am not satisfied that Branka would have been “better off” had she not acted in reliance on Nevenka’s assurances of a proprietary interest in the studio. In those circumstances, and for the reasons I set out in greater detail below, I do not think that notions of good conscience require that Nevenka be held to her promises.

To begin with, and even before I advert to the advantages that Branka derived from living at Cowper Street beyond 2006, it is altogether unclear what Branka is supposed to have lost, forfeited, or expended in reliance on the assumption engendered in her of receiving a right of sole occupation of the studio. I accept that she contributed to the improvement of the Cowper Street property, including the construction of the studio, in terms of labour and even potentially (if her evidence of having paid for certain things in cash is accepted) finance, and that this could be taken as money and effort “thrown away” if her expectation of a proprietary interest in the studio goes unrealised. I do not, however, consider that Branka would suffer anything more than a slight detriment by virtue of these moderate contributions alone, especially when one considers that she did not otherwise pay rent or contribute to household expenses while living at the Cowper Street property.

In terms of opportunities Branka gave up in anticipation of an entitlement to occupy the studio indefinitely, these were not articulated convincingly or with any precision. Although Goran and his family presently occupy the Prince Street property, which Branka owns outright, it remains open to her to move into that property. She is, in principle, in as ready a position to do so as she was to move out of the Cowper Street property and into one of the properties she then owned at any time prior to 2006, when Nevenka made the first alleged studio representation.

In my view, the present case can be distinguished from the factual scenario Rees J was presented with in Pirrottina. There, the representee (Sam) was shown to have passed up several valuable opportunities in reliance on his parents’ assurances that the house on the Lot would be his. Those opportunities included a separate offer by his parents to buy him a block of land on which to build a house, the possibility of financial contribution to his marriage from his father-in-law and an offer of employment. In the result, her Honour concluded that ([178]):

Importantly, in Pirrottina, her Honour evidently considered that in all the circumstances that detriment eclipsed or outweighed the benefit Sam received in the form of rent-free housing with utilities paid for by his parents.

No substantive evidence or argument was put before me as to any analogous opportunities that Branka could be said to have now forfeited or put beyond her reach in reliance on Nevenka’s assurances.

Turning to consider the countervailing benefits Branka has secured as a result of her reliance on Nevenka’s alleged studio representations, the submissions of Nevenka and Veselinka on this matter have considerable force. Continuing to reside at the Cowper Street property after 2006, where Branka was not required to pay rent or household expenses and did not make major financial contributions to renovations of the Cowper Street property or the construction of the studio, meant that she retained the ability to trade in properties and ultimately achieve her present position of owning the Prince Street property (valued at approximately $1.25 million) outright. I agree with Nevenka and Veselinka’s characterisation of the related benefit of being able to provide rent-free accommodation for her son and his family as essentially a corollary of the benefit she has obtained of being able to discharge the mortgage over the Prince Street property and now use the unencumbered property in any way she wishes.

I disagree with Branka’s argument that no necessary nexus can be drawn between her position of living rent-free at the Cowper Street property and her ability to buy and sell properties in the manner that she did. As a matter of commercial and general common sense, the fact that she did not pay any rent or other outgoings in connection with her occupation of the Cowper Street property, and that she did not physically reside in any property of her own that she had purchased, such that she had the freedom to use those properties either to generate further income through the collection of rent or through renovating and selling them at a profit, or to house Goran, was clearly economically advantageous to her. I regard this as a significant factor which must be brought to account in my consideration of whether and how Branka will be disadvantaged by virtue of the non-fulfilment of Nevenka’s promises.

My overall impression is that this case meets Ward P’s description in Slade at [287] of a situation “where a benefit (such as rent-free accommodation over a long period) might be treated as making good the promise or representation of an interest in property”. In my opinion, the benefits Branka derived from conduct she claims she undertook on the basis of an expectation of receiving a right to occupy the studio indefinitely (in particular, remaining at Cowper Street, where she has now lived continuously — and without paying rent — for just shy of 24 years) must be treated as effectively subsuming or making good Nevenka’s alleged studio representations.

Having determined on the balance of probabilities that Zora did not make a representation to Branka of the kind alleged (promising Branka one-third of her three-eighths share in the Cowper Street property), I need not turn my mind to purported instances of encouragement and/or acquiescence in Zora’s alleged promise on the part of each of Nevenka and Veselinka in assessing the unconscionability of departure from Zora’s alleged promise. However, had I determined that Zora’s alleged promise had in fact been made, for the same reasons as those given above in relation to any purported detrimental reliance by Branka on Nevenka’s alleged studio representations, I would have concluded that the substantial benefits Branka has secured for herself through continuing to occupy the Cowper Street property mean that it is not unconscionable for Zora’s alleged promise to go unfulfilled.

In all the circumstances, I do not consider that it is unconscionable, unjust or inequitable for Nevenka to depart from her alleged studio representations, and I am not satisfied that the elements of estoppel by encouragement are established in this case.

Having determined Branka’s estoppel claim adversely to her, the family provision aspect of Branka’s case remains to be determined on the basis set out below.

Section 58 of the Succession Act stipulates when an application for a family provision order may be made, providing that:

Certain policy reasons and considerations underlie the time constraint and the “sufficient cause” exception prescribed by s 58(2). This includes the need to ensure that applications for family provision do not unduly interfere with the prompt administration of deceased estates, reflected in the assessment by parliament that “the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications”, particularly since eligible persons will, in the vast majority of cases, be on notice of the testator’s death and the provision (or lack thereof) made for them (Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, Pembroke J at [24]). As Pembroke J observed in Madden-Smith at [23]–[24]:

The 12-month limitation period for the bringing of such applications is not a mere formality or procedural rule; it is a substantive provision laid down by statute (Verzar v Verzar [2012] NSWSC 1380, Lindsay J at [98]; Stone v Stone [2016] NSWSC 605, Brereton J at [36]; Anderson v Yongpairojwong [2023] NSWSC 1359, Griffiths AJ at [254]) and ought to be treated as such.

A useful summary of the principles applicable to the determination of an application seeking an extension of time, cited in full by Griffiths AJ in Anderson at [255], appears in Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572 at [84]–[90]. Paraphrasing Hallen AsJ, those guiding principles are as follows:

The expression “sufficient cause” refers to sufficient explanation, justification or excuse for the application not having been made within the period prescribed by statute: Moore v Randall & Anor [2012] NSWSC 184, White J at [39]; Underwood v Gaudron [2014] NSWSC 1055, Hallen J at [119]. In Underwood (affirmed on appeal in Underwood v Gaudron [2015] NSWCA 269 (Underwood appeal decision)), Hallen J at [125] opined that in relation to sufficient cause, the court must consider not only the period prescribed by s 58(2), but also the period after those 12 months had expired and before the proceedings were brought, since that lapse of time will ordinarily induce in executors and beneficiaries a legitimate assumption that there will be no challenge to the will.

In terms of prejudice, circumstances found to constitute clear evidence of prejudice resulting from the delay in making the application include where the estate has been distributed and spent: Underwood, Hallen J at [129]. This was the case in Underwood, where the beneficiaries had used their share of moneys from the deceased’s estate to pay for necessary renovations and/or modifications to their residences. In the Underwood appeal decision at [88]–[89], Basten JA (with whom Macfarlan and Ward JJA, as her Honour the President then was, agreed) described the situation as follows:

In Verzar v Verzar [2014] NSWCA 45 (Verzar appeal decision), Meagher JA (with whom Macfarlan and Barrett JJA agreed) elaborated on the kinds of unconscionable conduct, on the part of either the applicant or the beneficiaries, that might justify the grant or refusal of the application to extend time, stating at [25]:

As indicated by Meagher JA in the Verzar appeal decision at [33]–[35], the relevance of the strength of the applicant’s case for the making of a family provision order to the question of sufficient cause to extend time for the bringing of the application is twofold. The first aspect is whether the application as made and as at the time it is or is likely to be heard has sufficient prospects of success to justify an extension. The second aspect is whether allowing the family provision application to be brought out of time would or may have the effect of improving the applicant’s position compared to that which they would have occupied had the application been brought within the statutory limitation period. In this connection, in the Verzar appeal decision at [35], Meagher JA noted:

At the outset, Branka made clear that the claim for family provision is secondary, “an insurance policy” next to her estoppel argument (T2). This was reflected in Branka’s approach to this limb of her case, which was faintly put and, as I perceived it, half-heartedly advanced.

The need for sufficient cause to be shown pursuant to s 58 of the Succession Act, by reason of Branka’s family provision order application having been made out of time, was not directly addressed by Branka in written submissions.

In oral submissions, Mr Morahan accepted that the extension of time aspect of Branka’s family provision claim posed a particular problem for Branka. Branka’s position on this issue, and explanation for the delay by her in making an application, emerged as follows:

This was the extent of Branka’s submissions on the s 58 hurdle.

Nevenka and Veselinka submit that Branka has failed to show a sufficient cause for extending the time to bring the family provision claim, as is required under s 58(2) of the Succession Act for an application made out of time, and for that reason the application should be refused.

Noting that a claimant, in seeking to show sufficient cause, should address both the period preceding expiration of the statutory limitation period and subsequent delay (citing Underwood at [125]), Nevenka and Veselinka submit that no comprehensive explanation has been provided in respect of either. They note that Branka knew that Zora had died on 15 April 2017, and characterise Branka’s explanation for the delay — that she only read the Will for herself on 22 June 2022, and had assumed (upon learning of the statutory limitation period in 2019) that she no longer had the option of contesting the Will — as “slight”, using the language adopted by Hallen J in Chu v Ngar [2015] NSWSC 1505 at [152].

Nevenka and Veselinka contend, further, that the delay occasions prejudice to them in circumstances where:

Referring to the material relevance of the strength of a claimant’s case to the decision whether to extend time (citing the Verzar appeal decision, Meagher JA at [25]), Nevenka and Veselinka submit that Branka’s case lacks strength on a number of fronts. They point to the difficulties faced by Branka in seeking a notional estate order in circumstances where Zora’s estate has already been distributed, and in demonstrating grounds for the making of a family provision order given that she owns property in which she could live, her income exceeds her expenditure, and she was not materially dependant on Zora.

In my view, Branka has failed to show sufficient cause under s 58(2) of the Succession Act insofar as she has failed to provide a satisfactory explanation for the delay in bringing the family provision application. I also consider that prejudice would be visited upon Nevenka as a beneficiary by virtue of the delay. In those circumstances, I am not prepared to exercise the power to otherwise order under s 58.

In exercising the discretion afforded to me by s 58(2), I place store in the following factors disclosed by the evidence:

By way of justification for the delay, Branka asserted that she believed that she had no need for provision from the Will, having been promised a right of sole occupancy of the studio and having received Nevenka’s assurance that she would bequeath the studio to Branka.

The weight of judicial authority suggests that a mere change of mind or change of heart on the part of an eligible person who has decided not to make a claim, including on the basis of deterioration in that person’s financial position, is ordinarily not a sufficient cause for granting an extension of time: Stone at [36]; Verzar at [103]; Zirkler v McKinnon [2002] NSWSC 285 at [31]–[33]; Foley v Foley [2008] NSWSC 233 at [36]–[37]; Taylor v Farrugia [2009] NSWSC 801 at [14]; Henry v Hancock [2016] NSWSC 71 at [47].

In Zirkler, Macready M described the position at [31]–[32]:

Following this line of authority and reasoning, to the extent that Branka sought to justify her lateness in making an application by reference to a belief she held until around June 2021 (when Nevenka first requested that Branka leave the Cowper Street property) that she was and/or would be sufficiently provided for and had no need for provision out of Zora’s estate, I do not regard that justification as constituting a sufficient cause.

Moreover, I am satisfied that Nevenka as a beneficiary would be prejudiced by the delay, and not merely in the sense of being exposed to disappointment consequent upon readjustment of the interests under the Will to allow provision to be made for Branka. The evidence before me is that in order to give effect to an order for provision in Branka’s favour, the Cowper Street property (Nevenka’s home, where she has resided since 1988 and which she has expended significant time, money and energy over a period of decades adding to and improving, including in the wake of Zora’s death) would need to be sold and the proceeds then distributed among the three sisters. In those circumstances, and where several years have passed so as to engender in Nevenka a legitimate expectation that the status quo following the completed administration of Zora’s estate would go undisturbed, I consider that she would be unacceptably prejudiced if I were to grant an extension of time for the making of the application.

In terms of the strength of Branka’s claim, I agree with the submissions of Nevenka and Veselinka. I do not consider that Branka’s claim for family provision is a meritorious one, for reasons I have set out in greater detail below, in my consideration of whether I would make a family provision order in Branka’s favour.

In all the circumstances, I am not prepared to exercise the discretion to extend time in Branka’s favour. If I were minded to order otherwise under s 58(2) of the Succession Act, I have addressed the remaining issues comprising Branka’s claim below.

The circumstances in which a notional estate order — an order designating property that does not form part of the deceased’s estate (including as a result of distribution of property from the estate) as “notional estate” of the deceased person — may be made are set out in Part 3.3 of the Succession Act.

The power to make a notional estate order does not arise unless, relevantly to the present case, the court is satisfied that the deceased’s estate is insufficient for provision (or a costs order) to be made: s 88(b) of the Succession Act.

The court must not designate as notional estate property that exceeds what is necessary, in the court’s opinion, to allow the provision that should be made: s 89(2). Section 78, meanwhile, expressly provides that the court can only make a notional estate order if a family provision order or certain costs orders are to be made, and s 79 (dealing with the designation of property where the estate of the deceased has already been distributed) states that the court may make such an order if satisfied that upon distribution of the estate, the designated property came to be held by a person (whether or not as a trustee) or subject to a trust.

A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84.

Division 3 of Part 3.3 of the Succession Act imposes certain restrictions on the making of a notional estate order, and fixes general matters that must be considered by the court (s 87). Those (non-exhaustive) general matters are the need to avoid interfering with reasonable expectations attaching to property (s 87(a)); the substantial justice and merits involved in granting or refusing the order (s 87(b)); and any other matter the court considers relevant in the circumstances (s 87(c)).

In Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4, Basten JA at [125] gave some consideration to s 87(a) and concluded that the “reasonable expectations” referred to there must be taken to mean only that of the present holder(s) of an interest in the property, stating:

Basten JA’s view on this point has received some support from single judges of this court (see, for instance, Graham v Vukic [2020] NSWSC 1801, Parker J at [127]).

By contrast, Beazley P (Meagher JA agreeing) in Phillips appeared to consider that the statutory phrase “reasonable expectations” in s 87 must be read as including those of the defendant whose property stands to be designated as notional estate, those of the deceased, and those of the applicant seeking family provision: Beazley P at [105], Meagher JA agreeing, citing John v John; John v John [2010] NSWSC 937 at [117]–[118] (Ward J, as her Honour the President then was) with apparent approval and in turn citing Petschelt v Petschelt [2002] NSWSC 706 at [68]. See also Kastrounis v Foundouradakis [2012] NSWSC 264 at [126]–[128] and Morgan v Black [2023] NSWSC 1073 at [192]–[195].

The apparent conflict between Beazley P and Basten JA on this matter has not yet been resolved by the Court of Appeal of this court.

On the s 87(a) point, Slattery J in Manning v Matsen [2015] NSWSC 1801 made the following illustrative remarks at [157]:

Section 90 of the Succession Act imposes additional restrictions on the making of notional estate orders in proceedings involving out of time family provision applications (s 90(1)(a)). Section 90(2) relevantly provides:

The language of the provision makes clear that the court must be satisfied, as a precondition for the making of a notional estate order, that the conditions in either s 90(2)(a) or s 90(2)(b) obtain.

What is meant by “other special circumstances” in s 90(2)(b) has been considered in several cases. Those cases indicate that more is needed to establish special circumstances than that which would suffice to justify an extension of time under the Succession Act (i.e. sufficient cause). However, circumstances relevant to the court’s consideration under s 58(2) of the Succession Act may also figure in the court’s assessment of whether special circumstances exist to justify the making of a notional estate order: Stone at [71]; Purnell v Tindale [2020] NSWSC 746, Henry J at [327]; Campbell v Chabert-McKay [2010] NSWSC 859, White J at [86]–[87].

The following summary regarding s 90(2)(b), drawing on authorities that dealt with the predecessor provision, s 28(5) of the Family Provision Act 1982 (NSW), appears in Charnock v Handley [2011] NSWSC 1408, Hallen AsJ saying at [89]:

Brereton J in Stone listed several factual scenarios which were considered to answer the description or support findings of special circumstances (at [72], citations omitted):

No written or oral submissions were made by Branka on the application of Part 3.3 of the Succession Act and the need for a notional estate order in light of the completion of the administration of Zora’s estate, which occurred in 2018.

Nevenka and Veselinka submit that Branka has failed to establish grounds for the making of a notional estate order.

Referring to s 87(a) and (b) of the Succession Act, Nevenka and Veselinka contend that:

Turning to s 90, Nevenka and Veselinka note the application of that provision to the current proceedings (Branka’s application having been brought out of time) and state that because the conditions in s 90(2)(a) are not met, s 90(2)(b) is the relevant limb. In other words, they say, the court must be satisfied that “other special circumstances” justify the making of a notional estate order in this case.

In terms of the interaction of s 58(2) and s 90(2)(b) of the Succession Act, Nevenka and Veselinka state that these requirements — the need for sufficient cause to be shown for an extension of time to bring the claim, and the need for other special circumstances justifying a notional estate order — are additional and/or discrete rather than co-extensive. They say, citing Hallen AsJ in Charnock at [89], that the consequence of the use of the phrase “other” in s 90(2)(b) is that something extra is needed, beyond circumstances capable of demonstrating a sufficient cause for the purposes of s 58(2).

In this connection, Nevenka and Veselinka assert that Branka has failed to adduce evidence of any other special circumstances, and for that reason the notional estate order should not be made.

I agree with the submissions of Nevenka and Veselinka on the application of Part 3.3 of the Succession Act. Accordingly, even if Branka was successful in having the time for the making of the family provision claim extended, I would not make an order designating part of the Cowper Street property as notional estate of Zora.

Beginning with the s 87 general matters, following Beazley P in Phillips and Ward J in John, I have given weight to the reasonable expectations of each of Nevenka and Veselinka (as persons whose proprietary interests stand to be disturbed by any prospective notional estate order), Branka (as a person seeking provision from the deceased’s estate) and Zora (the deceased). I consider that their expectations in relation to the Cowper Street property would be interfered with by the making (or refusal) of a notional estate order in the following ways:

In addition to the foregoing matters, I regard the following factors as bearing on the substantial justice and merits involved in granting or refusing the notional estate order:

In respect of s 90, for reasons similar to those underpinning my conclusion regarding the lack of any demonstrated sufficient cause for extending time pursuant to s 58(2), I consider that no “other special circumstances” capable of justifying the making of a notional estate order arise in this case. I agree with the submissions of Nevenka and Veselinka on this point. To use the expression adopted by Brereton J in Stone at [71], no circumstances “unusual, uncommon or exceptional in character, quality or degree” — and no material or evidence indicative of such circumstances — are present here.

For the reasons outlined above, I would not make a notional estate order in respect of the Cowper Street property.

Given my determination that Branka’s claim for a family provision order should be dismissed on the bases outlined above, it is unnecessary to address at length the issue of whether, if those substantive hurdles had been overcome, I would have made an order in the exercise of the power under s 59(2) of the Succession Act for a family provision order in Branka’s favour out of Zora’s notional estate.

However, since I have referred, in dealing with the extension of time and notional estate order issues, to my view that Branka’s claim for a family provision order would not succeed, I will set out the applicable legal principles and the parties’ submissions and proceed to briefly explain why I would not, in the exercise of my discretion, have made such an order in any event.

Section 59 of the Succession Act relevantly provides:

Section 60(2) contains a list of factors to which the court may have regard for the purpose of determining the eligibility of an applicant for family provision and whether and in what form a family provision order should be made. Those matters are:

In Baker v Baker [2024] NSWSC 559, Hammerschlag CJ in Eq at [20]–[26] helpfully summarised the provisions of the Succession Act and legal principles governing the making of family provision orders as follows:

Determining the adequacy of provision involves an evaluative judgment, on a question of objective fact, based on all the circumstances: Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 147–8; [1979] HCA 2; White v Barron (1980) 144 CLR 431 at 434–5, 443; [1980] HCA 14; Singer v Berghouse (1994) 181 CLR 201 at 210–211; [1994] HCA 40.

Where a claim is brought by an adult child of the deceased, the following principles (lifted from Smith v Johnson [2015] NSWCA 297, Sackville AJA (Macfarlan and Ward JJA agreeing) at [62], reproducing Camernik v Reholc [2012] NSWSC 1537, Hallen J at [159]) offer guidance:

In respect of her claim for family provision, Branka submits that she is an eligible person (being a daughter of the deceased); that Zora did not make adequate provision for Branka in the Will; that while she owns property (the Prince Street property), she has effectively gifted that property to Goran and his family; and that she has health problems and limited savings for the future contingencies of life.

In the course of closing submissions at the hearing before me, Branka accepted that the issue of need posed some difficulty (T166), but suggested that adequate provision would see Branka given something in the realm of one-third of Zora’s share on an estate of $5 million (in other words, 12.5% of $5 million).

Branka submitted that I ought to compare her position with that of her sisters, noting:

Nevenka and Veselinka submit that the critical point on which Branka’s claim for family provision hinges, and must ultimately fail, is the adequacy of provision made for her by Zora in the Will. They say that in circumstances where Branka owns a property in which she could live, receives income in excess of her expenditure, does not assert any material needs, and was not materially dependent on Zora, it cannot be said, notwithstanding the Will conferred no benefit on Branka, that provision was inadequate and as such the jurisdictional requirement posed by s 59(1) of the Succession Act is not met.

On the relevance to this question of Branka’s alleged acts of service, including assisting with renovations of the Cowper Street property and providing care to Zora, Nevenka and Veselinka submit, without admitting that conduct, that it would not entitle Branka to provision from Zora’s estate. They say that family provision orders are not made as a reward for service, pointing to Windeyer J’s remarks in Blore v Lang (1960) 104 CLR 124 at 137; [1960] HCA 73 to the effect that family provision orders aim to “provide for deserving persons according to their requirements, not to reward past services” and in the same case, Menzies and Fullagar JJ’s statement at 134 that:

It is not the case, Nevenka and Veselinka say, citing Campbell JA (with whom Giles JA and Handley AJA agreed) in Hampson v Hampson [2010] NSWCA 359 at [80], that “[n]either entitlement to an award, nor its quantum, accrues good deed by good deed.” In their submission, any work done by Branka to assist in the renovations of the Cowper Street property does not entitle Branka to a family provision order in her favour.

In terms of Branka’s financial need, Nevenka and Veselinka place emphasis on the following factors:

For the foregoing reasons, Nevenka and Veselinka assert that the court should decline to make an order for family provision in Branka’s favour.

In reaching the conclusion that I would refuse the family provision order sought by Branka even if she had succeeded on the extension of time and notional estate issues, I have had regard to all of the evidence summarised above and all relevant s 60(2) matters. In all the circumstances, I cannot be satisfied that adequate provision for the proper maintenance, education or advancement in life of Branka was not made by the Will. That being so, the requirements for the exercise of the discretion conferred by s 59 are not met.

Of the non-exhaustive matters set out in s 60(2), I consider that the following considerations have particular force in the present case.

While I accept that Branka likely shared a loving relationship with her mother, the evidence tends to demonstrate that that relationship with Zora may not have been as close, as stable or as amicable as that between each of Nevenka and Veselinka and Zora, at least at different points in time. Again, this has to do with the alliances between the four women that formed and dissolved and re-formed over the years. In this connection, I place weight on the early dispute regarding the predecessor family property (the Avoca Street property), the joint ownership of the Cowper Street property by Zora, Nevenka and Veselinka (despite Veselinka living at Kilmarnock for much of the relevant period), and Zora’s earlier will whereby she devised the residue of her estate to Nevenka and Veselinka in equal shares, omitting Branka. I am also conscious that it was Nevenka who became Zora’s full-time carer when Zora’s health deteriorated in around 2010, setting up a makeshift bedroom for Zora in her own unit from which she nursed her.

Having reviewed the principles applicable to claims by adult children, I am not satisfied that Zora owed Branka any obligations of care above and beyond what might be said to be usual, particularly given that Branka appears at all relevant times to have been self-sufficient. She has demonstrated extensive experience in trading in properties and canniness in making investments, and has only co-habited with her mother and sisters since 2001 for what she says are family (as opposed to financial) reasons. There is nothing to suggest any ongoing or material dependency on Zora on the part of Branka. The evidence before me is that she does not lack financial resources or reserves and owns property in her own right. Against this, Branka has an adult child who she has taken it upon herself to support — such as by providing rent-free accommodation and paying his tuition fees — well into adulthood and who might be regarded as a dependent of her own, and I note that this a relevant consideration in determining what might constitute appropriate provision for her maintenance.

In terms of contributions to Zora’s estate and welfare, I again note that Nevenka’s efforts outstrip that of Branka, but that Branka did contribute by providing some level of care and assistance to Zora while she was alive, and by assisting with renovations of the Cowper Street property. As stated above, I have found that these contributions to improving the Cowper Street property (and therefore part of Zora’s estate) were more than nominal.

The administration of Zora’s estate was completed in 2018. The evidence before me is that the only property capable of being designated as notional estate of Zora is the Cowper Street property, which is presently held by Nevenka and Veselinka as tenants-in-common in unequal proportions (three-quarters and one-quarter shares respectively).

I have set out my conclusions as to the impact a notional estate order would have on the rights, interests and expectations of all relevant parties above.

Branka has assets with a combined value in excess of $1.33 million, including real property (the Prince Street property) and over $75,000 in savings. Her monthly income exceeds her monthly expenses by approximately $465. No evidence as to Branka’s future financial needs was placed before me.

Nevenka has assets worth just over $3.8 million, including a 75% share of the Cowper Street property. Her monthly income exceeds her monthly expenses by around $2,657.50. Nevenka’s estimated future expenses, including medical expenses, are not insignificant. I am satisfied that Nevenka, by reason of her chronic medical condition (but without entering into any detailed assessment or projection of the specific kind and cost of specialist treatment and domestic or in-home care assistance she may require at some future time), has substantial financial needs that, although presently met from her monthly income, may increase into the future with the progression of her illness.

Veselinka has assets worth approximately $1.3 million. Her monthly income exceeds her monthly expenses by approximately $325. I consider that she may have some moderate level of future financial need stemming from health conditions which she has deposed to suffering that is presently met by her monthly income.

There is no evidence of any physical, intellectual or mental disability of Branka, although I note her advanced age (71 years).

The terms of the Will make plain Zora’s intention that Nevenka would be the sole beneficiary in receipt of the assets of her estate.

In light of the above, in all the circumstances, I find that there would be no occasion to make an order for family provision in favour of Branka. The main factor compelling this conclusion is Branka’s lack of need, which I discern from the present state of her financial circumstances (including ownership of unencumbered real estate in Randwick with a value in excess of $1 million) as disclosed. To my mind, that plain lack of need, in combination with Zora’s clear testamentary intentions, the absence of evidence as to Branka’s future needs or material dependence on Zora at any relevant time, and the other s 60(2) factors addressed above, means that, notwithstanding the Will conferred no benefit on Branka, provision was not inadequate and as such the jurisdictional requirement posed by s 59(1) of the Succession Act is not satisfied.

As an aside, I am minded to address Branka’s submission as to the use to which the Prince Street property owned by her has been put. It was argued before me that the Prince Street property has effectively (although not technically) been gifted to Goran and his family, that it is their residence, and that she cannot, practically-speaking, live there with them. At the hearing, my attention was drawn to the “cultural overlay” of this arrangement (T162).

Whilst I accept that Branka has made the decision to support her adult son by providing him and his family with a home in which to live without paying rent, and I accept that it would, perhaps, be culturally inappropriate for her to request that he vacate the Price Street property, as a matter of law, she is the absolute owner of that property and is entitled and has the capacity to use it to meet her own accommodation needs — in the same way that Nevenka and Veselinka as the registered proprietors of the Cowper Street property are entitled to terminate the tenancy at will pursuant to which Branka occupied various parts of the Cowper Street property since 2001. The court must give due weight to Branka’s ownership of the Prince Street property as part of her unencumbered assets for the purposes of determining the adequacy of provision under s 59, and, had I not already determined both that Branka’s application under s 58(2) of the Succession Act should be refused and that no notional estate order should be made, I would have done so.

Having determined all of the claims made in the cross-claim by Branka adversely to her, Branka has no right to remain at the Cowper Street property and each of Nevenka and Veselinka as the registered proprietors of the Cowper Street property are entitled to bring an end to Branka’s occupation of the Cowper Street property.

Branka has previously been asked to leave the Cowper Street property: on 14 June 2021, by the letter of demand sent by Nevenka to Branka, which Branka received on 21 June 2021, demanding that she leave within two weeks; on 5 January 2022, by the termination notice sent by Nevenka to Branka, demanding that she leave within two weeks; and on 24 August 2022, by the letter from Adams & Co to Branka demanding that she leave within two weeks.

In all the circumstances, Nevenka and Veselinka are entitled to judgment for possession of the Cowper Street property. There is no basis on which the execution of a writ for possession should be delayed in light of the fact that Branka is the registered proprietor of the Prince Street property into which she is able to move.

The costs of the proceedings, calculated on an indemnity basis up to and including the completion of the four-day hearing before me, of Nevenka and Veselinka are estimated to be $133,000.00 (exclusive of GST).

Branka’s costs of the proceedings, calculated in the same manner, are estimated at $110,000.00 (exclusive of GST).

As the administration of Zora’s estate has been completed, and I have determined that no notional estate order should be made, no costs can be awarded out of the estate or the notional estate of Zora. Accordingly, I will direct that the parties provide brief written submissions in respect of any proposed costs order, with the intention that the issue of costs, if disputed, be dealt with by me on the papers.

For the reasons I have given above, I propose to make the following orders: