Rogic v Samaan

The plaintiff, Radan Rogic, married the late Ljubica Pacic in April 1989 after an acquaintance of five months. Radan was then 31 years old and Ljubica was almost 43 years old. They were divorced on Ljubica’s application in December 1992. They had no children and there was no property settlement.

Ljubica died from cancer in July 2015 at the age of 69. In the twenty-two years between her divorce from Radan and her death, Radan was married for thirteen years to another woman with whom he had two children. Radan’s second marriage also ended in divorce. Although the extent of their friendship is a matter of controversy, the Court accepts that Radan and Ljubica remained on socially friendly terms after their divorce and that Radan was one of several people who provided care and support to Ljubica at the end of her life.

Ljubica’s only substantial asset was her home at Canley Heights (the “Property”). She had purchased it subject to a mortgage in 1985, nearly four years before she married Radan. The Property has been sold and the proceeds are being held pending the outcome of these proceedings.

Ljubica made three wills after her divorce from Radan. Despite their friendship after their divorce, Radan was neither a beneficiary nor the executor under any of those wills. Ljubica had no family in Australia. Each of those three wills left her estate to her family in the Serb Republic of Bosnia and Herzegovina (the “Serb Republic”). The third will, made in April 2015 (the “2015 Will”), appointed the defendants, Irene Samaan and Mile Gorgioski, as executors. Probate of the 2015 Will has been granted to Irene and Mile, who are not beneficiaries under the 2015 Will. The beneficiaries are Ljubica’s nieces and nephew in the Serb Republic.

Radan alleges that at the time he married Ljubica in 1989, she told him that she still owed $12,000 on the mortgage over the Property. Radan’s claims in these proceedings are based on two fundamental allegations. First, he says that he gave Ljubica a lump sum of $7,000 or $7,500 and other funds, and thereafter his entire wages, which enabled Ljubica to repay the mortgage early and then be applied by her to meet their expenses as a married couple. Second, he alleges that at the time of their divorce Ljubica told him “When I die, Radan you will inherit the home” (the “Alleged Representation”). Radan says that, in reliance on the Alleged Representation, he did not apply for a property settlement.

Radan claims that in equity he is entitled either to the Property or to such interest in the Property as represents his contribution to the repayment of the mortgage. In addition he makes a claim for a family provision order under the Succession Act 2006 (NSW) (the “Act”). Radan’s claim under the Act was commenced 11 months out of time and he seeks an order that the limitation period be extended.

Radan’s claim in equity fails because he has not satisfied the Court of the amount of his contributions or that the Alleged Representation was made. This is because those matters rely on his word alone in circumstances which include that the only person who could corroborate Radan’s evidence is Ljubica, the deceased; no contemporaneous financial or other records are available; the relevant events took place more than twenty-five years ago; there are demonstrable inconsistencies in other parts of Radan’s testimony; and, there is no evidence that Radan ever mentioned his alleged entitlement to anyone until after Ljubica’s death. Given those matters, the Court is unable to reach a state of actual satisfaction about the facts critical to Radan’s claim.

In relation to Radan’s claim under the Act, he has demonstrated a barely sufficient basis for the Court to extend the time for the filing of his claim. However, the Court is not satisfied that there are factors warranting his application within the meaning of s 59(1)(b) of the Act. Even if there were factors warranting, the Court would not have made a family provision order. While Radan is certainly not well off, his financial circumstances are no worse (and at least in one respect appreciably better) than the circumstances of the beneficiaries under the 2015 Will. Nevertheless, and acknowledging that Radan does have some serious health issues, the Court is satisfied that this would have been a case where Ljubica’s clearly expressed testamentary wishes should be respected.

Radan and his friend Senija gave their evidence through a Serbian interpreter. Their affidavits were interpreted into English by Radan’s bilingual solicitor. At the conclusion of these reasons I explain why that should not be done.

Mr A Blank of Counsel appeared for Radan. Mr L Ellison of Senior Counsel appeared for the defendants. Without disrespect, I shall refer to the parties and other persons who feature in these reasons by their given names.

I will first set out the Court’s findings of fact. For ease of understanding I will do so as a narrative. Where a fact has no cross-reference, it is based upon such contemporaneous documents as were in evidence or was a matter not in dispute. Where there was a dispute about a fact, there is a cross-reference to a later section of this judgment where the reasons in respect of that particular fact will be found.

Ljubica was born on 3 May 1946.

Radan was born on 4 November 1958.

Ljubica and her friend Antoni Szadkowski had known each other from before Ljubica bought the Property. They met when they were both renting rooms in the same house in Liverpool.

Ljubica bought the Property on 29 November 1985 for $54,000, subject to a mortgage of $34,000 to the Commonwealth Bank of Australia (the “Mortgage”) with monthly repayments of principal and interest of $397.

Radan arrived in Australia on 26 November 1988 on a tourist visa and moved in with his brother.

The next day, 27 November 1988, Radan’s brother introduced Radan to Ljubica.

On 30 April 1989, Radan (then aged 31) married Ljubica (then aged nearly 43).

Radan gave some money and his pay to Ljubica during the course of their marriage. In the absence of any contemporaneous financial records or other corroborating testimony, the evidence does not permit the Court to make a finding as to how much of Radan’s income was applied to discharge the Mortgage. See paragraphs [86] to [99] below in relation to this conclusion.

A discharge of Ljubica’s mortgage over the Property was registered on 11 August 1989.

Between 24 June 1990 and 30 December 1990, Ljubica was in Europe including visiting her relatives in what was then Yugoslavia.

Sometime in mid-1991, Radan and Ljubica commenced living separately but under the one roof.

In 1992, Ljubica commenced divorce proceedings in the Parramatta Registry of the Family Court of Australia. On 30 November 1992, the decree nisi was pronounced. One of the reasons Radan left the relationship was that Ljubica was unable to have children and he wanted to have children. Radan also alleges that Ljubica developed a drinking and gambling problem. It is not necessary for a finding to be made about this and the Court refrains from doing so.

In 1992 or 1993, Senija Radojcic and her husband meet Ljubica and Radan.

On 31 December 1992, Ljubica and Radan’s marriage was finally dissolved. The Court is not satisfied that at this time or any other relevant time Ljubica made the Alleged Representation or that she expressly or impliedly represented to Radan that if he did not pursue a property settlement, she would leave him the Property. See paragraphs [100] to [106] below in relation to this conclusion.

After their divorce and up to 1998, Ljubica and Radan maintained a social relationship, although the evidence does not permit the Court to make a finding as to its frequency and the extent to which (if at all) it included sexual relations. See paragraphs [107] to [114] below in relation to this conclusion.

On 20 June 1995, Ljubica made a will leaving the whole of her estate to her brother and sister-in-law, residents of the Serb Republic. If they were to pre-decease her, then her estate was to pass to their children (who are the beneficiaries under the 2015 Will). The executor under this will was Momo Buac, who was not otherwise referred to in the evidence. The will includes a request that Ljubica be buried in the Serb Republic.

Radan sustained a back injury in 1996.

In 1996, Senija’s husband died and her friendship with Radan and Ljubica “slowly withered away” (Senija’s words). She maintained intermittent contact with Radan, with the friendship rekindling after Radan’s divorce from Zorka in 2011.

In or around 1996 to 1997, Mile met Ljubica.

Irene met Ljubica in December 1998, when a friend of hers (Trajce) was renting a room from Ljubica at the Property.

On 21 June 1998, Radan married Zorka, with whom he had two daughters (aged 14 and 16 at the date of hearing). Radan and Zorka would see Ljubica from time to time socially.

In 1999, Radan received approximately $260,000 from a successful workers compensation claim in relation to his back injury. He applied this money to purchase the matrimonial home he shared with Zorka.

For several years until around 2006, Ljubica was in a relationship with a Polish man named Stasko.

In 2010, Radan had a kidney transplant.

In 2011, Zorka “threw [Radan] on the street” (Radan’s words) and they subsequently divorced.

By 2013, Ljubica was feeling quite unwell. On 28 March 2013, while driving Ljubica to the doctor, Radan and Ljubica were involved in a car accident in which they both suffered injuries.

In April 2013, Ljubica was diagnosed with bowel cancer.

On 11 July 2013, Ljubica made a new will. She appointed Mile (described in the will as “my friend”) as executor and, after a legacy to him of $15,000 in lieu of commission, she gave her whole estate to her nieces and nephew, being the children of her (now) deceased brother. They are the same beneficiaries who take under the 2015 Will. She included a request that she be buried in Serbia.

Radan saw more of Ljubica again after his divorce from Zorka, including Ljubica giving Radan a few days’ accommodation after Zorka threw him out. After her cancer diagnosis and as she grew sicker, particularly in the last months of Ljubica’s life, Radan, Senija, Irene, Mile and other members of the Serbian community visited Ljubica. They variously provided her with food, personal care and the like. Radan drove Ljubica to medical appointments. He also drove Senija and others to bring food to Ljubica. Irene also drove Ljubica to some medical appointments. In the last three months of Ljubica’s life, Irene and Mile generally came in the morning and Senija and Radan came in the evening. See paragraphs [107] to [114] below in relation to these findings.

On 6 June 2014, Ljubica and Irene bought adjoining burial plots at Riverstone Cemetery.

In October 2014, Radan received $95,579 from the sale of the home he had owned with Zorka.

In early 2015, Ljubica needed a full-time carer in order to be released from hospital. She asked Antoni to do this. He agreed. Antoni undertook that role, including receiving a carer’s benefit, from late March 2015. He thereafter lived with Ljubica at the Property until her death nearly four months later.

On 16 April 2015, Ljubica made the 2015 Will. This describes Mile and Irene as “my friends” and no longer contains a direction for her burial in the Serb Republic. This omission is consistent with her purchase of a burial plot at Riverstone Cemetery (see paragraph [41] above).

Ljubica died on 24 July 2015 at the age of 69.

On the day of Ljubica’s death, or within days afterwards, Radan learned that he did not benefit under the 2015 Will.

The limitation period for bringing a claim under the Act expired on 24 July 2016.

Probate of the 2015 Will was granted to Irene and Mile on 28 February 2017.

On 26 May 2017, Radan lodged a caveat over the Property. The particulars of his estate or estate were described as “interest pursuant to resulting and/or constructive trust. Interest pursuant to ss 57 and 59 of Succession Act 2006”. The facts said to give rise to the interest were given in the caveat as “Caveator is ex-husband of deceased as well as her de facto at the time subsequent to their divorce. The caveator contributed funds towards acquisition, preservation and/or maintenance of the property, as well as towards discharge of the mortgage.”

On 3 June 2017, the Property was sold at auction for $935,000. By arrangement between the parties the net proceeds, which in effect constitute Ljubica’s estate, are being held pending the outcome of these proceedings.

On 29 September 2017, Radan received $157,435.55 in respect of the car accident that had occurred in 2013 (see paragraph [37] above).

These proceedings were commenced by summons filed on 15 June 2017, eleven months out of time.

The gross distributable value of the estate is approximately $930,000. Irene and Mile intend to claim 4% commission. Irene and Mile’s costs of the proceedings (including disbursements and counsel’s fees) up to and including the hearing are $99,000 inclusive of GST on the indemnity basis. The equivalent figure for Radan’s costs is $165,000 (his solicitor not having provided an estimate on a party/party basis).

At the time of the hearing, Radan was nearly 60 years old. A report from his treating doctor said “Mr Rogic is a seriously sick man and has multiple health problems”. The report identified his most important health issues as arising from his kidney transplant in 2010 and the fact that he suffers from insulin dependent diabetes, which developed as a result of the kidney transplant. He also suffers from unstable blood pressure, obesity and fatty liver and has degenerative cervical and lumbosacral spine disease. He is on permanent immunosuppressant therapy for his kidney transplant which he will require for the rest of his life.

Radan is only able to walk short distances, cannot lift more than two kilograms and needs to avoid frequent bending, pulling and pushing. According to his treating doctor, Radan is able to drive up to 30 minutes with occasional stops for rest.

His doctor’s prognosis was “that a combination of kidney transplant with insulin dependent diabetes, obesity and spinal problems even with treatment will significantly reduce his lifespan”. His doctor’s conclusion, which I accept, is that Radan is unfit for any type of work. I infer that he will therefore remain on a disability support pension for the rest of his life.

The parties agreed that Radan has $265,000 in cash. He also has a car and furniture which together he valued at $6,000. He owns no real property and lives in rented accommodation in Cabramatta paying $150 rent per week.

Radan’s only source of income is the disability support pension, which varies around $878 per fortnight (which is after a deduction for child support payments of approximately $16 per fortnight). His expenses approximate his income. Nowhere in his evidence is there any suggestion that he is unable to pay his bills, although the Court accepts that he does not have much left over. The cash which he has is largely the product of the payments referred to in paragraphs [42] and [51] above and a recent $20,000 windfall from the weekly membership draw of a club to which he belongs.

In particular, insofar as family provision was concerned, Mr Blank submitted that Radan should receive a cash sum which, when added to his existing $265,000, would leave him with enough money to meet his rent for the rest of his expected life. Other than what I have referred to in paragraph [56] above, there was, however no evidence of Radan’s life expectancy. Any family provision, it was submitted, should be in addition to what he might recover from his equitable claim.

The beneficiaries under the 2015 Will all live in the Serb Republic, also referred to in the evidence as Bosnia. I accept that their financial and personal circumstances did not permit them to come to Australia to give evidence. Evidence about the beneficiaries’ circumstances — which I reproduce in the following paragraphs — was provided on information and belief by the defendants’ solicitor based on a telephone conference he had with them on 16 March 2018 with the assistance of a Serbian interpreter. They were not available for cross-examination. While I am conscious of the principles which suggest a degree of caution in accepting evidence that cannot be tested, Mr Blank ultimately did not object to the evidence being admitted and, given the nature of the evidence as going to the beneficiaries’ circumstances rather than contested issues of fact, I accept it. At the date of these reasons, A$1 is approximately €0.62.

Stana Dermanovic is a niece of Ljubica. Ms Dermanovic gave the following information in the interview :

Ljubica Milojevic is a niece of Ljubica and sister to Stana. Ms Milojevic gave the following information:

Vaselija Dermanovic, Ljubica’s nephew, gave the following information:

Danika Dermanovic, the deceased’s niece, gave the following information:

I set out a summary of the principles in relation to credit and making findings where facts are disputed in Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964:

Because this is a case where critical conversations and transactions were alleged to have occurred with Ljubica, who of course is now deceased, I also gratefully adopt and apply what was recently summarised by Hallen J in Papas v Co [2018] NSWSC 1404:

In a case with almost no contemporaneous documentary evidence, and where statements attributed to Ljubica cannot be tested, the Court’s assessment of Radan’s credit assumes particular importance. For the reasons which follow, I came to the view that Radan was not a reliable witness. In saying that, I do not suggest that he was deliberately lying. Nevertheless, the combination of the passage of time, a tendency to be dogmatic in the face of such contemporaneous evidence as there was, and (incidentally to his dogmatic approach) a tendency to extemporise or exaggerate, leave me unable to be satisfied to the requisite standard of essential matters which rely upon his word alone.

At the heart of my concerns about the reliability of Radan’s evidence, and relating to one of the most central aspects of the case, was his departure from his affidavit evidence in the witness box in relation to where he says he obtained the funds which he says he gave to Ljubica to pay off the Mortgage. In more than one place in his principal affidavit (see paragraphs [95] to [97] below), Radan asserted that at the time of his marriage to Ljubica he had about $9,000 in savings and that he gave her $7,000 or $7,500 to reduce the Mortgage. However, it emerged in cross-examination that he did not have that amount of savings and that his brother had loaned him $3,500 towards the amount he gave Ljubica. There was nothing about this in his affidavit. He accepted in cross-examination that, contrary to his affidavit, he did not have $7,000 or $7,500 in savings in April or May 1989.

A further reason why I am unable to accept his reliability on this critical matter is that even in the course of his cross-examination, his evidence was inconsistent. Initially (T36:33) he said that his brother loaned him $3,500. A few minutes later (T48:33) he said “I borrowed from my brother $3,000 to pay off the house”. In a case where the only evidence for the amount of contribution claimed by Radan is his own, uncorroborated testimony, I regard such discrepancies as casting real doubt on the reliability of his evidence in its particulars.

Insofar as what I consider to be Radan’s tendency to be dogmatic about his recollection or to extemporise his evidence, three examples will suffice.

First, when asked about how long Ljubica was away on her holiday to Serbia during their marriage, he adamantly maintained that it was four months. He continued to do so in the face of being shown her passport, which clearly demonstrated that she was away for six months. He ultimately retreated to an answer of “I never actually followed that” (T29:31). In have no doubt that he genuinely believed it was only four months. However, for the purposes of this case I regard this as a telling example of how a sincerely held recollection of a long ago event (1990) can be proven wrong by simple, contemporaneous evidence.

Second, during his cross-examination he asserted, for the first time in the evidence, that when he was driving Ljubica to the doctors on one occasion she told him that if she died “someone” would call him about the Property. This evidence was nowhere in his affidavit. This then produced a good example of his dogmatic approach when it was put to him that at or about the time of Ljubica’s funeral he was told that he was not in the 2015 Will. He instantly denied that and said he found out “when nobody was contact — calling me, when the house was selling…nobody was contacting me but house was on sale” (T58:11–19). He was adamant about that until it was pointed out to him that his own affidavit evidence was to the effect that at about the time of Ljubica’s death Mile told him that Ljubica had not left him (Radan) anything in the 2015 Will.

The third example is what I consider to be his increasingly incredible evidence about the circumstances of his divorce from Ljubica. His affidavit evidence on the point was already somewhat difficult to follow, in circumstances where he accepted that Ljubica had initiated divorce proceedings, but he also gave evidence that she wanted him to stay. In the course of his cross-examination he went on to describe her commencing the divorce proceedings as a “mistake” and that he was “begging her to get me back” (i.e. to marry him again) (T44:22–28).

Radan’s evidence was that Ljubica had initiated the divorce because he (Radan) couldn’t put up with her drinking and her gambling. This self-sacrificing approach to a divorce seems to me to be implausible unless independently corroborated. When I asked about whether he had told her not to go ahead with the divorce he said “I did beg her but it was already lodged. She said, “I have lodged it” and I just received a letter to go to Parramatta.” (T44:50–45:1). In short, his evidence on this point struck me as increasingly strident and fanciful.

I should record that I have not overlooked the dispute in the evidence about whether or not Ljubica drank and gambled during the course of her marriage to Radan and for some time thereafter. Radan and Senija give evidence she did. Irene and Mile give evidence otherwise. Antoni is silent on the topic. Given the partisan nature of the witnesses’ evidence and the absence of independent corroboration, I am unable to make a finding and decline to do so. In any event, this allegation was ultimately irrelevant to the resolution of the proceedings.

Although this observation is also relevant to why I am not satisfied there was any “agreement” of the kind alleged by Radan, it is appropriate that I record at this point my impression that his evidence was strongly coloured by what I accept was his genuine belief that his contributions to paying off the Mortgage, together with the Alleged Representation (with no causal connection expressed either way between the two), gave him an entitlement to the Property.

He said as much in his principal affidavit affirmed on 13 September 2017 (the “September Affidavit”):

A similar theme emerged — revealingly not referring to the Alleged Representation — in this exchange I had with Radan at the end of his evidence (T61:6–24) (emphases added):

Senija was called in Radan’s case. I came to the conclusion that she could not be treated as an entirely independent witness. She was very much in Radan’s “camp”. This was apparent from her clear dislike of Irene and Mile.

I treat her evidence with some caution, except where it is inherently credible, against Radan’s interest or corroborated by reliable, contemporary evidence. In particular, I discount her efforts to downplay the role played by Irene and Mile in assisting Ljubica.

It is convenient to consider Irene and Mile’s credit together. Irene and Mile are not beneficiaries under the 2015 Will, although they do claim an entitlement to commission. Nevertheless, in those circumstances it might be expected that they would fall into the category of relatively independent witnesses. However, this was not borne out by the way they gave their evidence.

Irene and Mile both demonstrated a clear dislike of Radan and I formed the view that their evidence was coloured by that. I accept Mr Blank’s submission that, for whatever reason, it would appear that they resent Radan for having brought this claim. I therefore treat their evidence in the same way as I treat Senija’s, namely with some caution, except where it is inherently credible, or against their interest (such as it is) or corroborated by reliable, contemporary evidence. In particular, I discount their efforts to downplay the role played by Radan and Senija in assisting Ljubica.

Antoni impressed me as the only independent and reliable witness. He gave his evidence under cross-examination in a straightforward manner and in a fashion that did not betray any consciousness or concern about the effect of his answers on the case. In the midst of other witnesses who were trying to downplay each other’s roles in Ljubica’s life, it struck me as refreshingly honest that when it was put to him that Irene and Mile said they had hardly ever seen Radan visiting Ljubica in her final illness, Antoni answered immediately to the effect that Irene would come to the Property in the morning whereas Radan and Senija would come around 7 o’clock in the evening bringing food and the like.

In reaching my assessment of Antoni’s credit, I have not overlooked his evidence to the effect that Ljubica had never told him that she had been married and that he did not see Radan at the Property until about ten years before Ljubica died. Antoni said this was not long after Stasko had been deported from Australia around 2006–2007 and that Ljubica introduced Radan to Antoni as “a friend”. Given the length of time that has passed, I do not regard it as implausible that Antoni did not visit the Property, or at least does not remember visiting the Property, during the time that Ljubica and Radan were married, being more than twenty-five years ago.

Although he was called in the defendants’ case, the way in which he gave his evidence under cross-examination did not, in my view, betray any partiality to either side of the dispute. I accept Antoni’s evidence.

Radan’s affidavit evidence in his September Affidavit was:

I accept that a conversation of the kind deposed to in paragraph 10 of Radan’s September Affidavit took place. It is inherently likely, being a conversation of a kind which the Court has no difficulty in accepting would have occurred between two people who were about to get married, and where one of them already owned their own home. I also accept the inherent likelihood of Radan’s evidence that he gave his earnings to Ljubica for the reasons he gives.

The real issue becomes whether or not Radan has proven his and Ljubica’s income, how much he gave Ljubica towards the discharge of the Mortgage and whether she applied it for that purpose and his other funds towards their living expenses. This question must be assessed against the background that it is evidence of circumstances nearly thirty years ago, that the only person who could give any evidence about this — Ljubica — is dead and there are no contemporaneous banking or pay records available.

Radan conceded in cross-examination that he did not know and could not prove how Ljubica applied the money which he gave her, beyond saying that their bills were apparently paid and that the Mortgage was discharged within four months of their marriage. At a superficial level, and accepting the earnings to which Radan deposes in paragraph 11 of his affidavit quoted above, if it be assumed that $12,000 remained on the mortgage then there was income sufficient to pay off $12,000 in that period. However, the Court has no evidence of what their expenses were at the time.

The only objective contemporary evidence (the transfer of the Property to Ljubica and the Mortgage) establishes that Ljubica bought the Property in November 1985 for $54,000, subject to the mortgage of $34,000 with monthly repayments of principal and interest of $397, and that the Mortgage was discharged (and therefore the Court can safely infer, repaid) by 11 August 1989. Significantly for present purposes, and ultimately fatally for Radan’s case, no mortgage statement has been tendered showing the repayment history of the Mortgage.

The facts which have been proven do not enable Radan’s evidence to be tested. This much can be demonstrated mathematically. In round terms, 29 November 1985 to 30 April 1989 is a period of 41 months. It is around April 1989 that Radan said Ljubica told him she still owed $12,000 on the Mortgage.

To keep the mathematics simple, if interest is ignored and it is assumed that Ljubica had been making the monthly repayment of $397, then the amount of the Mortgage would have been reduced by $16,277 (41 months x $397). On this analysis, the amount of the Mortgage would have been reduced to $17,723. Given that the repayments of the Mortgage were in fact for principal and interest, then it must follow that if Ljubica had paid only the $397 per month, the balance of the Mortgage as at the date of her marriage would have been even greater than the $17,723 (because some part of each repayment would have been repaying interest rather than principal).

It could, of course, be responded, that Ljubica may have been trying to repay the Mortgage faster from her own resources. The difficulty with this response is not its plausibility, but rather the fact that there is absolutely no evidence about the topic whatsoever. For example, Radan does not give any evidence to the effect that Ljubica told him that she had been trying to repay the Mortgage faster by making repayments of greater than $397 per month.

This example only serves to demonstrate that the Court only has Radan’s word for the amounts involved. However, on examination, even the versions given in his affidavit are not consistent.

The first evidence is at paragraphs [14] to [15] of the September Affidavit:

However, it will be seen that even in that first version, his recollection is inexact as to whether it was $7,000 or $7,500 that he gave to Ljubica to pay towards the Mortgage.

He repeats this evidence in slightly different terms in paragraph 19 of the September affidavit (which again repeats the $7,000 or $7,500 being applied to reduce the Mortgage):

I accept and find that Radan gave his wages to Ljubica. However, I am unable to reach a state of actual satisfaction as to Radan and Ljubica’s income, the amount which Radan gave to Ljubica, and whether that was in fact applied to reduce the Mortgage, for the following reasons:

In reaching this conclusion, I have not overlooked the fact that the transfer which was tendered into evidence corroborates Radan’s evidence that Ljubica purchased the Property for $54,000. However, insofar as that might be thought to be a basis to accept the rest of his evidence concerning the amount of his financial contributions, it is outweighed by the other matters to which I have referred in the preceding paragraph.

Radan’s case relied on these two paragraphs of his September Affidavit:

I can readily accept that it is inherently likely that Ljubica may have said words to that effect to Radan during the course of their marriage. It is the sort of thing which a wife might say to her husband. However, if said in those circumstances, and without more, the Court would not interpret them as being intended to survive a divorce.

Radan’s case was that the Alleged Representation was made at the end of the marriage and in circumstances where he relied upon them not to apply for a property settlement. For the following reasons the Court is not satisfied that those words were said or that, even if they were, Radan could reasonably have relied upon them not to apply for a property settlement. These are the reasons for that conclusion:

There are two other observations which it is necessary to record in relation to the Court’s inability to be actually satisfied that Ljubica made the Alleged Representation or that Radan acted in reliance on it.

First, the fact that there was no property settlement is, in and of itself, a neutral factor. It is explicable for many reasons, of which only one is the version advanced by Radan.

Second, I have not overlooked Radan’s assertion of an “agreement” during his cross-examination (T39:26–50):

I regard it as significant that not even at that moment of his cross-examination did Radan specify what the “agreement” was. For example, he did not say something to the effect of “Ljubica promised me that I would inherit the Property if I did not apply for a property settlement”. As I have noted in paragraph [76] above, the clear impression I got from Radan’s evidence, including the evidence which I have just quoted, was that he clearly assumed or believed that he had an agreement with Ljubica in relation to the Property, but nowhere in his evidence does he attribute any words to her which could provide a context for the Court to find that he was promised the Property in return for not seeking a property settlement.

Much of the evidence of the various witnesses was directed to attempting to prove the closeness of the relationship between Radan and Ljubica. In summary, Radan’s evidence was that from the day of the divorce (being an invitation to attend a New Year’s Eve party at the Property) and thereafter, he maintained a close and cordial relationship with Ljubica, even after he had left the Property.

It is not necessary for the Court to make a finding as to how close and cordial that relationship was. There was considerable confusion in Radan’s evidence by the use of “intimate” in his affidavit evidence and the questions that he was asked in cross-examination. Radan ultimately said that he did not know what “intimate” meant. I gained the impression that it was his evidence that up until the time he married Zorka, he and Ljubica still had sexual relations from time to time. It was less clear whether that was his evidence in relation to the period after Radan had separated from Zorka.

As I have observed in paragraphs [80] to [82] above, the evidence on the nature of the relationship between Radan and Ljubica was very partisan, with Radan and Senija on one side, and Irene and Mile on the other. Having carefully considered their evidence and observed them under cross-examination, I have come to the firm conclusion that each of them was exaggerating at least to some extent.

The overwhelming picture which I formed from the evidence and I am satisfied was the case, is that within the Serbian community Radan and Ljubica did continue a cordial relationship, seeing each other from time to time. At least at a social level, I am satisfied that also continued while Radan was married to Zorka. However, this conclusion must be understood in the light of the fact that the Court is also satisfied that while Radan was married to Zorka, Ljubica was in a relationship with Stasko for several years.

The conclusions I have expressed in the preceding paragraph are fortified by Antoni’s evidence, which for reasons I have given in paragraphs [83] to [85] above I accept, that Ljubica “had many friends who came and visited her often”. The conclusion is also based on an inference going backwards in time from when Ljubica became increasingly unwell and required greater assistance. Antoni’s independent observation was that all of the protagonists visited and helped Ljubica during that period, albeit visiting at different parts of the day. This last matter offers at least some explanation as to why the two camps asserted with such vehemence that they barely saw each other at the Property. The Court is left in no doubt that, to the credit of all of them, as Ljubica’s friends and fellow members of the Serbian community, they cared for her during her terminal illness. So much is clear from Antoni’s evidence, especially in cross-examination.

There are two other matters I have taken into account on this question to reach the conclusion that Radan and Ljubica’s relationship was a generally social one (rather than anything more), especially towards the end of her life.

First, Antoni gives evidence that when Radan visited Ljubica in the last months of her life, she would disrespect him and call him “budalla” (“stupid”). In fairness to Radan, Antoni went on to explain in cross-examination (and I accept) (T132:32-34) that “…in this community, it’s happen this way all the time. We argue and we friend, next day we say sorry, it’s all right”.

Second, the fact that Ljubica never appointed Radan even as an executor under the three wills she made after their divorce belies Radan’s evidence of a more than casually social relationship.

It will be apparent from the Court’s findings for the reasons set out in the preceding paragraphs that Radan’s equitable claim fails for want of proof of essential facts. The Court is unable to be actually satisfied of the amount of his contributions to the Mortgage or more generally, or that, at the end of the marriage, Ljubica made the Alleged Representation. It follows that the Court is not satisfied that Radan did anything in reliance on the Alleged Representation. Nevertheless, it is appropriate that I set out how Radan’s equitable claims were ultimately put.

The basis of Radan’s claim in equity to either the whole of the Property, or to a lesser interest, was not obviously apparent from the statement of claim:

In his opening, Mr Blank put the case as one in estoppel (T2:4–35):

In closing submissions, Mr Blank submitted that he relied on the promissory estoppel (although he later said the estoppel encompassed both a proprietary estoppel and a promissory estoppel — what he described as “estoppel at large”) and a case based on what he submitted were Radan’s contributions to the improvement of the Property. He relied on Baumgartner v Baumgartner (1987) 164 CLR 137 (“Baumgartner”); [1987] HCA 59 and the decision of Young CJ in Eq (as his Honour then was) in Henderson v Miles (No 2) (2005) 12 BPR 98200; [2005] NSWSC 867 (“Henderson”).

Insofar as proprietary estoppel is concerned, Radan has failed to satisfy the Court that his expectation or belief as to his entitlement to the Property can be attributed to anything said or done by Ljubica, or that Ljubica encouraged him not to seek a property settlement or knew that he had not done so because of what she had allegedly said. Similarly in relation to promissory estoppel, Radan has failed to satisfy the Court that Ljubica induced him to adopt the assumption or expectation that he would inherit the Property or that Ljubica knew or intended him not to seek a property settlement in the expectation that he would inherit the Property.

Had either basis for relief been made out, this would not have been a case where the Court would have come to the view that equity required Radan to receive the whole of the Property. In circumstances where, at its highest on his case, Radan had contributed $12,000 to a property purchased for $54,000, I accept Mr Ellison SC’s submission that it would be disproportionate and inequitable to give Radan the benefit of the whole Property.

While Mr Blank’s primary submission was that Radan should receive the whole of the sale proceeds, his alternative submissions presented detailed calculations representing the value of the notional family law property settlement which Radan had not sought. Those calculations will be retained with the papers. It is sufficient for me to note that, including interest, they yielded a result, in favour of Radan, of between $31,079 and $68,090. Mr Ellison SC’s submissions disputing those calculations will also be retained with the papers.

Radan’s case based on Baumgartner and Henderson does not depend upon estoppel. Rather it invokes equity’s jurisdiction upon the breakdown of a joint enterprise (in this case the marriage) to prevent one party retaining an unconscionable windfall. In this case it is said that the unconscionable windfall was the amount contributed by Radan to the repayment of the Mortgage. Again, for reasons I have given above, Radan has failed to satisfy the Court on the balance of probabilities as to the amount of his funds that was actually applied for that purpose.

Furthermore, I have not overlooked Mr Blank’s submissions that if the Court was not satisfied that Radan’s funds were completely applied to the reduction of the Mortgage by $12,000, then the Court should find that Radan made at least a $6,000 contribution to the Mortgage by way of salary pooling and that his interest in the Property (now the proceeds of sale) should be adjusted accordingly. Again, the difficulty with this submission is that the Court is unable to be actually satisfied as to whether or not the amount of the Mortgage outstanding at the time when Radan and Ljubica got married was, in fact, $12,000 so as to be able to conclude that at least half that should be attributed to Radan. Similarly, the Court cannot be actually satisfied of the amount of Radan’s contributions.

There was no dispute that, as a former husband of Ljubica, Radan is an eligible person under s 57(1)(d) of the Act.

Section 58(2) of the Act provides:

Ljubica died on 24 July 2015 and these proceedings were commenced by summons filed 11 months out of time on 15 June 2011.

Radan’s evidence as to why he delayed in bringing these proceedings was set out in his September Affidavit:

The defendants opposed the extension of time. Mr Ellison SC submitted that Radan’s evidence did not demonstrate any good reason for his delay. He had known almost immediately upon Ljubica’s death that she had made no provision for him in the 2015 Will. His September Affidavit made it clear that he knew solicitors who, even if they themselves did not practice in estate matters, could have referred him to someone who did. There was, it was submitted, simply no proper explanation as to why Radan had waited nearly two years after Ljubica’s death to commence these proceedings.

Mr Ellison SC referred the Court to the statement of relevant principles by Hallen ASJ (as his Honour then was) in Gersbach v Blake [2011] NSWSC 368:

This case presents as a borderline application for an extension of time. It might be thought that the length of delay, in practical terms 11 months from the last date on which the proceedings could have been brought without leave, was not that long. However, Radan’s explanation for his delay is barely adequate. There has been no unconscionable conduct on either side. Also weighing heavily against his application is that, as will be apparent from what follows below, I consider Radan’s claim to be a weak one. Had the defendants been able to demonstrate any real prejudice by reason of the delay, the Court would not have granted an extension of time.

The defendants had expressly pleaded by way of defence:

I am not satisfied that the defendants have been able to demonstrate any prejudice by reason of the 11-month delay, especially in relation to the loss of records, for the following reasons:

No prejudice other than the potential loss of contemporaneous records was seriously advanced by Irene and Mile. I am not satisfied that the 11-month delay in commencing the proceedings means that any documents that would otherwise have been available have become unavailable. As I have noted, the proceedings were fought without any contemporaneous records other than those that were available by searching the title to the Property. Unfortunately for Radan, the absence of contemporaneous records has, in the result, ultimately worked against his interests.

The Court will make an order under s 58(2) extending the time for the commencement of these proceedings to the date upon which they were in fact commenced.

Radan is an eligible person under the Act solely by reason of the fact that he is Ljubica’s former husband (s 57(1)(d)). As such, as a prerequisite to the exercise of its discretion to make a family provision order, s 59(1)(b) requires that the Court be satisfied that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”.

Mr Blank submitted that the factors warranting Radan’s application were:

The parties agreed that the leading authority on the question of “factors warranting” is the decision of the Court of Appeal in Lodin v Lodin [2017] NSWCA 327. The relevant statements of principle are to be found in the judgment of Sackville AJA (with whom Basten and White JJA agreed) (citations omitted):

Applying Lodin, the question becomes whether any of the matters raised by Mr Blank (see paragraph [136] above) “are circumstances that justify regarding [Radan] as a natural object of testamentary recognition by Ljubica. Those circumstances must go beyond the bare fact of …a previous familial… relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on [Ljubica] to make some provision for [Radan]” (Lodin at [114]). That assessment must be made, in accordance with s 59(1)(b), “having regard to all the circumstances of the case (whether past or present)”.

Three of the matters relied on by Mr Blank may be combined into the factor of the nature of the relationship between Ljubica and Radan after their divorce in December 1992. The Court’s findings about that are set out in paragraphs [26], [32] and [40] above. In short, the Court is satisfied that they remained on friendly social terms and that, at least prior to Radan’s marriage to Zorka, they may have enjoyed sexual relations from time to time. However, there is no suggestion that at any time during that period they were in a close personal relationship, or in a de facto relationship (other than a faint reference in Radan’s caveat (see paragraph [49] above that was not relied upon at trial), or that Radan was in any way financially dependent on Ljubica.

I am not satisfied that the type of friendship which has been proven would, in and of itself, justify Radan being considered as a natural object of Ljubica’s testamentary recognition or demonstrating any social, domestic or moral obligation on her part to provide for him. This is particularly the case when the Court takes into account that for thirteen of the twenty-two years of Ljubica’s life after her divorce from Radan, Radan was married to Zorka and had two children with her. Furthermore, for several years until around 2006, Ljubica was herself in a relationship with another man.

The next matter relied upon by Mr Blank was the care and assistance provided by Radan to Ljubica during her illness. The Court’s finding in relation to that are set out in paragraphs [40] above. What Radan did undoubtedly reflects well on him. The same can be said for the other witnesses who, as the Court has found, all provided Ljubica with assistance. However, I am not satisfied that what Radan did was sufficient to make him a natural object of Ljubica’s testamentary bounty “having regard to all the circumstances of the case”. There are three reasons for this conclusion:

The next matter relied upon by Mr Blank was the fact that there was no property settlement between Radan and Ljubica so that his financial and non-financial contributions have at no time been taken into account. I accept that in some cases the absence of a property settlement would be a sufficient factor warranting an application by an ex-spouse. However for the following four reasons I do not consider it to be such in this case:

It is convenient to record at this point that Mr Blank did not place any reliance on Ljubica’s alleged behaviour during the marriage as creating any duty in Ljubica towards Radan. Even if such behaviour had been established (see paragraph [75] above) Radan could hardly be heard to rely on that behaviour when his evidence was that the divorce was a “mistake” and that he had begged Ljubica to marry him again.

The final matter relied on by Mr Blank was that the competing beneficiaries did not present as the natural objects of Ljubica’s testamentary bounty. For the reasons set out in paragraph [141(3)] above, I disagree.

It follows that the Court is not satisfied that there are factors warranting Radan’s application under the Act. Therefore no family provision order will be made.

In case I am in error on the question of factors warranting, I will, for completeness, briefly set out my views as to the merits of Radan’s application for a family provision order.

The same considerations inform my conclusions that:

Radan does not suggest that his expenditure exceeds his income, modest though it may be. He is able to provide for himself from his disability support pension, including paying rent. He has the benefit of $265,000 in cash available for him to meet unexpected expenses (including of a medical nature) and by way of a buffer for contingencies. While that amount could also be applied for a nursing home bond, there is no evidence before the Court upon which I could conclude how much of such a bond could be met from his cash reserves.

Turning to the position of the beneficiaries, they are certainly no better off financially than Radan. They have no assets to their name and appear to live a relatively hand-to-mouth existence. In one respect Radan appears to be better off than the beneficiaries because none of them has a cash reserve of the amount that Radan has in his bank account. I do accept and take into account that, unlike most of the beneficiaries, Radan has serious health issues, but there is nothing to suggest that Radan will not be adequately cared for by the public health system.

In my view the decisive matters requiring the jurisdictional question to be answered in the negative or, alternatively, on the basis of which the Court would not order further provision, are:

Finally, it is necessary that I make two points about the way in which Radan’s affidavit evidence was prepared. Those affidavits were written in English. Radan and Senija speak very little English and cannot read English. Radan’s solicitor speaks Serbian and English. He took instructions from Radan and Senija in Serbian. He then translated those instructions himself into English and prepared their affidavits in English. He then read the affidavit back to the relevant witness in English and translated it back to them in Serbian to obtain their assent to its contents.

In making these observations, I am not suggesting that Radan’s solicitor acted unethically. I assume that he did not retain a qualified, independent interpreter because he was trying to save costs by taking advantage of the fact that he spoke Serbian. Nevertheless, what was done is not a practice which is likely to maximise the prospects of justice being done and should be avoided when the witness is a culturally or linguistically diverse (CALD) person unless there is no practical alternative (for example, due to lack of communication facilities in a remote region, or urgency). It is noteworthy that during the course of their oral evidence, both Radan and Senija (giving their evidence through a NAATI accredited interpreter) said at various times words to the effect that that they did not understand or recognise “their words” in their respective affidavits.

The two points are:

I will briefly elucidate these points.

The first point is obvious. An affidavit in English giving an account of a conversation will at least implicitly represent that the conversation was in English. If in fact the conversation was in another language, then the affidavit is misleading (even if unintentionally so). Furthermore, particularly in cases where the conversation is alleged to have legal consequences, it is usually very important to know if it was not in English, so that possible issues such as tone, nuance and other linguistic idiosyncrasies can be taken into account. In some cases such matters have proven to be of critical importance.

As to the second point, there are at least two reasons why a bilingual solicitor should not interpret the deponent’s evidence to produce an affidavit in English.

First, “research demonstrates the superior performance of trained interpreters over untrained bilinguals”: Judicial Council on Cultural Diversity, “Recommended National Standards for Working with Interpreters in Courts and Tribunals” (2017, http://jccd.org.au/wp-content/uploads/2018/02/JCCD-Interpreter-Standards.pdf) at p 41 (the “Standards”).

Being bilingual is not the same thing as being an interpreter (spoken words) or translator (documents). Interpreting and translating are highly skilled occupations, often now undertaken with the benefit of specialist tertiary study. Furthermore, reputable interpreters adhere to a professional code of ethics which emphasises the importance of professional competence, accuracy and independence.

Second, assuming the role of interpreter or translator could put the solicitor in an invidious professional position. This is also why even a solicitor who is also a professional interpreter — if there are any — should not do so in her or his own cases. Difficulties may arise if the accuracy of the interpretation is questioned, raising the possibility of the solicitor having to give evidence. Allegations of unconscious or even conscious bias could be raised.

Each of Radan’s and Senija’s affidavits in this case was prepared and witnessed by Radan’s solicitor, and concluded with this statement:

I infer that this was done by reference to the suggestion in Hamilton, Lindsay, Morahan and Webster (eds), New South Wales Civil Procedure Handbook 2018 (Thompson Reuters, 8th ed, 2018) at p 835 referring to UCPR Part 35 r 35.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”):

The note to the same rule in Ritchie’s Uniform Civil Procedure NSW (Looseleaf, Lexis Nexis Butterworths) at [35.7.5] is to slightly different effect and also refers to the use of an interpreter:

The best practice which should now be followed is set out in the Standards, which have been approved by the Council of Chief Justices of Australia and New Zealand. The Standards, with which practitioners should become familiar, contain model rules. Pending the incorporation of those rules into the UCPR, problems of the kind I have identified will be avoided if affidavits of CALD witnesses are prepared using a qualified interpreter and in accordance with model rule 1.16:

The statement of claim will be dismissed. The Court will give the parties an opportunity to address on costs.