Application of Hoang - [2020] VSC 199

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2020 00597

In the matter of the Estate of KHIEM TRAN, deceased

In the matter of an Application by MICHAEL CHAU TRUNG HOANG, plaintiff

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JUDGE:	Judicial Registrar Keith
WHERE HELD:	Melbourne
DATE OF HEARING:	On the Papers
DATE OF JUDGMENT:	21 April 2020
CASE MAY BE CITED AS:	Application of Hoang
MEDIUM NEUTRAL CITATION:	[2020] VSC 199

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ADMINISTRATION AND PROBATE – Application brought by executor for advice or directions in relation to defending debt recovery proceeding initiated by son of the deceased – Order 54 Supreme Court (General Civil Procedure) Rules 2015 (Vic) – In re Beddoe, Downes v Cottam [1893] 1 Ch 547 (CA) – Role of Court in advising or directing executor in this matter, where issues are in contention – Court found executor right to have sought direction – Court found executor right to defend proceedings initiated against estate

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A P Dickenson

JUDICIAL REGISTRAR:
Introduction

Khiem Tran, the deceased, died on 20 July 2018 leaving a will dated 23 January 2017 (‘the will’). Probate of the will was granted to the plaintiff (‘the executor’) on 26 November 2018.

The executor has applied for advice and directions in the administration of the deceased’s estate in the nature of the application In re Beddoe[1] pursuant to order 54 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).[2]
[1]In re Beddoe, Downes v Cottam [1893] 1 Ch 547 (CA).
[2]At paragraph 1 of the Executor’s originating motion dated 3 February 2020, reference is had to “Directions pursuant to Rule 52.02 [Supreme Court (General Civil Procedure) Rules 2015 (Vic)] as to whether to defend the proceeding issued by Tony Khoa Tran against the plaintiff in his capacity as the executor of the estate of Khiem Tran, deceased.” This appears to be a typographical error, and I have proceeded on the basis that this was intended to refer to Rule 54.02, as is consistent with the Executor’s listing at the top of his originating motion.

In the origination motion filed 3 February 2020, the executor seeks the following:

(a) directions pursuant to Rule 54.02 as to whether to defend the proceeding issued by Tony Khoa Tran against the plaintiff in his capacity as the executor of the estate of Khiem Tran, deceased; and

(b) an order authorising the plaintiff to use the funds of the estate of the deceased to defend the proceeding issued by Tony.[3]

[3]Given multiple persons involved in this matter have the same last name, references to first names are used to aid identification, and not to be disrespectful.

The proceeding issued by Tony is identified in the supporting affidavit as proceeding S ECI 2019 01766. The proceeding was commenced by writ on 23 April 2019. The executor filed a defence on 17 June 2019. In that proceeding Tony claims the sum of $300,000 from the estate…

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 Application of Hoang

Details

AGLC: Application of Hoang [2020] VSC 199
Case: [2020] VSC 199
Decision Date: 21 April 2020

CaseChat Overview and Summary

The parties involved in this case are the applicant, Hoang, as the executor of the deceased's estate, and the son of the deceased, who initiated debt recovery proceedings against the estate. The dispute revolves around the executor's request for the court's advice and directions in relation to defending the debt recovery proceedings. The case was heard in the Supreme Court of Victoria.

The legal issues the court had to decide pertained to the appropriate role of the court in providing advice or directions to an executor, particularly in situations where the issues were contentious. The court needed to determine whether the executor had the right to seek the court's direction and whether the executor was justified in defending the proceedings initiated by the son of the deceased against the estate.

The court ruled that the executor was entitled to seek the court's direction in this matter. The court found that the executor had a legitimate interest in seeking guidance on how to proceed with defending the debt recovery proceedings. The court also determined that the executor had the right to defend the proceedings initiated by the son of the deceased against the estate. The court's decision was based on the principles established in previous cases such as In re Beddoe and Downes v Cottam, which emphasised the importance of the executor's role in managing the estate and protecting its interests.

The court's final orders were not explicitly stated in the text. However, it can be inferred that the court provided the executor with the necessary advice and directions to enable them to defend the debt recovery proceedings initiated by the son of the deceased against the estate.

Orders