Australia, Aug. 4 -- New South Wales Land and Environment Court issued text of the following judgement on July 4:

1.The plaintiff, Gordana Skidmore (aged 52), and the defendant, Aleksandra Salvatore (aged 40), are the children of the late Dragica Lukac and her late husband, Vlajko Lukac. Without disrespect, I shall refer to the various family members by their given names.

2. Vlajko predeceased Dragica in March 2022. Dragica died on 15 January 2023. Aleksandra is the sole beneficiary and executor of her mother's will. Gordana last saw her mother in 2005.

3. The value of Dragica's estate is approximately $59,000. However, in 2022 Dragica executed a transfer of a property at Liverpool (which Dragica had previously owned as joint tenant with Vlajko) to Aleksandra for no consideration. The property was sold in January 2025. Approximately $536,000 of the sale proceeds are currently held in Aleksandra's solicitors' trust account. That figure is what is left after sale costs, and $50,000 having been paid to Aleksandra.

4. By summons filed on 11 November 2024, Gordana seeks an order for family provision pursuant to the Succession Act 2006 (NSW) out of Dragica's estate or notional estate. It is common ground that the estate has been distributed and that the proceeds are liable to be designated as notional estate.

5. By an amended notice of motion (further modified in the course of argument as to the quantum of the injunction sought), Gordana brought:

1) What was, in effect, an amendment application, being an order for the matter to proceed by way of pleadings so that she could bring a claim in equity challenging the validity of the transfer; and

2) An injunction application to restrain Aleksandra from dealing with $300,000 of the proceeds pending determination of the proceedings.

6. I dismissed the amendment application at the conclusion of that part of the oral argument, and indicated I would give my reasons for that when I determined the injunction application. I have set out the relevant facts and submissions in [9] to [27] below. These are the reasons why I dismissed the amendment application:

1) The proceedings have had a Court-annexed mediation and are otherwise ready to be referred to be given a hearing date on their next return date.

2) The actual estate, small as it was, has been distributed. The only available asset is the proceeds, which it is accepted by Aleksandra are liable to be designated as notional estate and are not a large sum.

3) There was no explanation (whether sworn or even from the Bar table) as to why the matters raised in the amendment application were not raised from the outset. It was accepted that the matters now relied upon were known to Gordana at that time. The Court can only conclude that a forensic decision was taken to see what might come of the family provision proceedings including the usual Court-annexed mediation, and then raise the equitable claim as a "second bite at the cherry".

4) It would be inimical to the administration of family provision matters, especially in small estates, to allow new causes of action to be raised after the usual pre-fixture mediation unless it can be shown that they arise from material that has only become known after the mediation and could not have been discovered earlier with reasonable diligence, or there is some other exceptional explanation as to why they were not advanced earlier.

5) There was no utility in the amendment when it was accepted by Aleksandra that the proceeds were liable to be designated as notional estate. Gordana did not have standing to challenge the transfer on the equitable grounds now sought to be relied on because she was not a beneficiary of Dragica's estate. She could only do so through the mechanism of her claim for a family provision order.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197d36aea5f88ddb570ece95)

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