Ljubica Dimitrovska who died in November 2014 had three children: the first, Radmila, born in Macedonia in 1948, from her first marriage, which ended in divorce about 1950; the second, Lidija, born in Macedonia in 1957, and her third child a son, Leonard born in Macedonia in 1960 ( who predeceased Ljubica) from her second marriage which ended when her husband died in 1971.
Ljubica and her second husband moved to Australia with Lidija and Leonard, in 1967; and in 1969 the couple purchased the Granville property (the principal asset of Ljubica’s estate). Radmila remained in Macedonia.
Lidija married her first husband in 1976 and in 1987 moved to live in Croatia. She had subsequently married her second husband and lived in Croatia.
Vase Antov the son of Radmila and a grandson of Ljubica moved to Australia in 1997 but had spent time in Austria for a brief time in 1999 and then again from 2001 to about 2006.
The Grandson’s claim
Vase claimed he was entitled to an unencumbered interest in the Granville property which had been owned Ljubica and which had been occupied by Vase (together with the Ljubica and Radmila) from approximately May 2010.
Vase sought a declaration that, in the events which had happened, Lidija (as executor of the deceased’s estate) held the Granville property upon constructive trust for him.
A constructive trust, is an equitable remedy that seeks to avoid the consequences of unconscionable conduct by one party, to the detriment of a beneficiary. In Muschinski v Dodds (1985) 160 CLR 583 Deane J stated that a constructive trust
“can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement”.
Vase also sought an order that Lidija do all things and sign all documents necessary to transfer the unencumbered title of the Granville property to him, and further sought a declaration that, as executor of the estate, Lidija held the balance of the estate upon constructive trust for him.
Vase’s case rested upon the existence of two documents — a Power of Attorney, and a document described as a Contract for a Gift, which was said to have been prepared on the deceased’s instructions by Zarko Dabeski a Macedonian lawyer in 2009.
These documents were alleged by Vase in combination to have given rise to specific representations in relation to the Granville property, upon which Vase claimed to have relied to his detriment, so as to generate an entitlement to receive an unencumbered transfer of the Granville property on the grounds of promissory estoppel.
Vase submitted that he relies upon both documents to establish his case, if the Contract for a Gift is not found to be an authentic document then “this case would simply not be pressed further”
At first instance Vase’s claims were dismissed with costs, the Court held that it was not persuaded that the Contract for a Gift was an authentic document which had been executed by Ljubica, and declaring that the execution of the Power of Attorney was of no effect as it had been obtained by the undue influence and unconscionable conduct of Vase.
Vase appealed the decision on the grounds that the primary judge erred in finding that the Contract for a Gift was not authentic, and in exercising discretion under r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW) by refusing to receive the evidence of Zarko Dabeski – who claimed to have witnessed the execution of this document – via video link with the court in Macedonia, and in refusing to receive Mr Dabeski’s affidavit into evidence.
The defendant was not provided with any contact details that have been able to produce any communication with Zarko Dabeski, they have not even been able to confer with him in order to satisfy themselves in relation to some procedural aspects at least in relation to his evidence.
Section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 provides the court with a discretion whether or not to permit evidence to be given by video link, the court must not make such an order if satisfied that a direction to allow such a course would be unfair to a party.