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Alexiou v Alexiou

Alexiou v Alexiou

Case [2020] NSWSC 748 17 June 2020

Executors and Administrators

Injunction

Summary Disposal

Succession Law

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Alexiou v Alexiou [2020] NSWSC 748
Hearing dates: 28 May 2020
Decision date: 17 June 2020
Before: White J
Decision:
(1)   Order that the plaintiffs’ notice of motion dated 12 May 2020 be dismissed with costs.
(2)   Order that the proceedings be dismissed.
(3)   Order that the plaintiffs pay the defendant’s costs of the proceedings.

Catchwords:
INJUNCTION – Interlocutory injunction – whether sole director be restrained from causing the company to sell certain real property – where sole director appointed pursuant to her capacity as executrix for the deceased sole shareholder – whether serious question to be tried that sole director would breach duty to beneficiaries by causing company to sell

SUCCESSION — Executors and administrators — whether executrix holds shares in private company as executrix or trustee – whether executrix assented to the trusts of the will so as to hold the shares as trustee for the beneficiaries – where administration of the estate has not concluded
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings – whether proceedings for removal of a purported trustee ought to be dismissed – whether proceedings are premature and thereby fail to disclose a cause of action
Legislation Cited:
Corporations Act 2001 (Cth), s 201F
Uniform Civil Procedure Rules 2005 (NSW), r 7.16
Cases Cited: Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28
Bell v Scott (1922) 30 CLR 387
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] AC 694
CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53; (2005) 224 CLR 98
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45
Porteous v Rinehart (1998) 19 WAR 495
Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469
Texts Cited: G E Dal Pont, K F Mackie, Law of Succession, 2013, LexisNexis Butterworths
Category: Procedural and other rulings
Parties: Costa Alexiou by his tutor Arthur Alexiou (First Plaintiff)
Jason Alexiou by his tutor Arthur Alexiou (Second Plaintiff)
Voula Alexiou (Defendant)
Representation:
Counsel:
D Parish (Plaintiffs)
N Condylis (Defendant)
Solicitors:
Gillis Delaney (Plaintiffs)
Walker and White (Defendant)

File Number(s): 2020/98568

Judgment

HIS HONOUR: By summons filed on 31 March 2020 the plaintiffs, Costa and Jason Alexiou by their tutor Arthur Alexiou, seek an order that the defendant, Voula Alexiou, “be removed as trustee of trust created over the shares in Alexicon Pty Ltd in the last will and testament of Con Alexiou deceased 11 May 2019 and replaced by Maria Alexiou”.
By notice of motion dated 12 May 2020 the plaintiffs through their tutor sought an interlocutory injunction restraining the defendant in her capacity as the sole director of Alexicon Pty Ltd (“Alexicon”) from selling, encumbering or otherwise dealing with the property known as Unit 1, 126 Batt Street, Jamisontown, NSW.
By notice of motion filed on 1 May 2020 the defendant seeks summary dismissal of the proceedings.
The plaintiffs are minors. Arthur…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexiou v Alexiou

Details

AGLC: Alexiou v Alexiou [2020] NSWSC 748
Case: [2020] NSWSC 748
Decision Date: 17 June 2020

CaseChat Overview and Summary

The case of Alexiou v Alexiou involved a dispute over the sale of certain real property by the sole director of a company. The court was asked to consider whether an interlocutory injunction should be granted to prevent the director from causing the company to sell the property. The director had been appointed as executrix for the deceased sole shareholder of the company, raising questions about the nature of her appointment and her capacity to act on behalf of the company. The court was required to determine whether there was a serious question to be tried that the executrix would breach her duty to the beneficiaries by causing the company to sell the property.

The court examined the legal issues regarding the executrix's capacity to hold shares in the company. It considered whether the executrix held the shares as executrix or as trustee for the beneficiaries. This depended on whether she had assented to the trusts of the will, thereby agreeing to hold the shares for the beneficiaries. The court also had to determine whether the executrix's appointment was valid and if she was acting within her powers. Additionally, the court addressed whether the proceedings for the removal of the executrix as trustee were premature and whether they disclosed a cause of action.

The court found that there was a serious question to be tried regarding the executrix's capacity and the nature of her appointment. It concluded that the executrix had not assented to hold the shares as trustee for the beneficiaries, and therefore, she held the shares as executrix. The court further determined that the executrix was acting within her powers as executrix. Consequently, the court dismissed the application for an interlocutory injunction, holding that the executrix was not causing the company to sell the property in breach of her duties. The court also dismissed the proceedings for the removal of the executrix as trustee, finding them to be premature and failing to disclose a cause of action.

Orders