Aronis v Aronis - [2021] QSC 87

SUPREME COURT OF QUEENSLAND

CITATION:

Aronis & Anor v Aronis [2021] QSC 87

PARTIES:

THEODORA LOULA ARONIS AS EXECUTOR OF THE ESTATE OF PETER GEORGE ARONIS (DECEASED)

(first plaintiff)
THEODORA LOULA ARONIS

(second plaintiff)
v
MATINA ARONIS AS EXECUTOR OF THE ESTATE OF MARIA ARONIS (DECEASED)

(defendant)

FILE NO:

SC No 12875 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

29 April 2021

DELIVERED EX TEMPORE AT:

Brisbane

HEARING DATE:

20 April 2021

JUDGE:

Flanagan J

ORDERS:

1. Pursuant to s 127 of the Land Title Act 1994 (Qld), Caveat No. 716825957 over property located at 74 Vulture Street, West End in the State of Queensland, properly described as Lot 2 on Registered Plan 11157, Title Reference 11525014 (“74 Vulture Street”) be removed, on the condition that:

(a)     the net proceeds of any sale of 74 Vulture Street, after payment of any agent’s commission, selling costs, and other usual adjustments on sale, be paid into the trust account of the defendant’s solicitors;

(b)    such funds not be dealt with or disbursed except:

(i)      in accordance with paragraph 2 of this order; or

(ii)     with the prior written consent of the plaintiff’s solicitors; or

(iii)   with the Court’s leave.

2.    The funds referred to in paragraph 1 of this order may be applied:

(a)     by payment in respect of maintenance, repairs, rates, land tax and other charges in relation to Lot 1 on Registered Plan 92106, Title Reference 13403001, described as 3 Hayling Street, Salisbury;

(b)    by payment in respect of maintenance, repairs, rates, land tax and other charges in relation to:

(i)      Lot 4 on Registered Plan 92106, Title Reference 13296123;

(ii)     Lot 5 on Registered Plan 92106, Title Reference 13296124; and

(iii)   Lot 6 on Registered Plan 92106, Title Reference 13296126,

collectively described as 17 Hayling Street, Salisbury;

(c)     by payment in respect of maintenance, repairs, rates, land tax and other charges in relation to Lot 142 on Registered Plan 45158, Title Reference 12765113, described as 99 Burn Street, Camp Hill;

(d)    by payment of:

(i)      the defendant’s costs and disbursements in Supreme Court proceeding 12875/15 (“this proceeding”); and

(ii)     the defendant’s costs of defending any interlocutory appeal in this proceeding; and

(iii)   other bona fide expenses of the estate of Maria Aronis.

3.    For the avoidance of doubt, paragraph 2 of this order does not authorise, and the prior written consent of the plaintiff’s solicitors or the further leave of the Court is required, before the funds referred to in paragraph 1 of this order may be applied:

(a)     in repayment of any money which Matty Aronis, in her personal capacity, has advanced to the estate of Maria Aronis (deceased), whether:

(i)      in connection with this proceeding; or

(ii)     in connection with Supreme Court proceeding 10436/19 (“the probate proceeding”); or

(iii)   for any other purpose; or

(b)    to defend the probate proceeding.

4. Pursuant to s 96 of the Trusts Act 1973 (Qld), the Court declares that the defendant is justified in:

(a)     selling 74 Vulture Street;…

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 Aronis v Aronis

Details

AGLC: Aronis v Aronis [2021] QSC 87
Case: [2021] QSC 87
Decision Date: 29 April 2021

CaseChat Overview and Summary

The case of Aronis v Aronis involved the plaintiff seeking a declaration of a constructive trust over estate property, while the executor of the estate applied for the removal of a caveat over part of the estate property to permit its sale for the purposes of funding the defence of the claim. The plaintiff objected to the sale of the property, arguing that it would deprive her of the benefit of receiving the property in specie if successful at trial. The court had to decide whether the caveat should be removed and the sale of the property permitted. Additionally, the executor applied for a declaration that she was justified in selling estate property and applying the sale proceeds for the purposes of defending litigation brought against the estate. The court also had to determine whether that declaration should be made. Finally, the plaintiff sought orders permitting her to inspect documents the subject of a subpoena issued on her behalf, which the defendant objected to on grounds of irrelevance.

The court found that the executor was justified in selling the property and applying the sale proceeds for the purposes of funding the defence of the claim, and for other bona fide expenses of the estate. The court also found that the inspection of the subpoenaed documents should be permitted, subject to certain conditions. The court held that the defendant was justified in selling the property and applying the sale proceeds as set out in the order, and the caveat over the property was removed on certain conditions. The trial was adjourned to a later date, and the defendant was required to provide the plaintiff with access to the subpoenaed documents, subject to certain conditions.

The court made several orders, including the removal of the caveat over the property on certain conditions, the declaration that the executor was justified in selling the property and applying the sale proceeds for the purposes of funding the defence of the claim, and the requirement that the defendant provide the plaintiff with access to the subpoenaed documents, subject to certain conditions. The costs of the defendant's application to adjourn the trial were each party's costs in the proceeding, and the plaintiff was required to pay the defendant's costs of certain applications. The trial was adjourned to a later date for a ten-day trial before Jackson J.

Orders

Orders of the court

1. Pursuant to s 127 of the Land Title Act 1994 (Qld), Caveat No. 716825957 over property located at 74 Vulture Street, West End in the State of Queensland, properly described as Lot 2 on Registered Plan 11157, Title Reference 11525014 (“74 Vulture Street”) be removed, on the condition that:

(a) the net proceeds of any sale of 74 Vulture Street, after payment of any agent’s commission, selling costs, and other usual adjustments on sale, be paid into the trust account of the defendant’s solicitors;

(b) such funds not be dealt with or disbursed except:

(i) in accordance with paragraph 2 of this order; or

(ii) with the prior written consent of the plaintiff’s solicitors; or

(iii) with the Court’s leave.

2. The funds referred to in paragraph 1 of this order may be applied:

(a) by payment in respect of maintenance, repairs, rates, land tax and other charges in relation to Lot 1 on Registered Plan 92106, Title Reference 13403001, described as 3 Hayling Street, Salisbury;

(b) by payment in respect of maintenance, repairs, rates, land tax and other charges in relation to:

(i) Lot 4 on Registered Plan 92106, Title Reference 13296123;

(ii) Lot 5 on Registered Plan 92106, Title Reference 13296124; and

(iii) Lot 6 on Registered Plan 92106, Title Reference 13296126,

collectively described as 17 Hayling Street, Salisbury;

(c) by payment in respect of maintenance, repairs, rates, land tax and other charges in relation to Lot 142 on Registered Plan 45158, Title Reference 12765113, described as 99 Burn Street, Camp Hill;

(d) by payment of:

(i) the defendant’s costs and disbursements in Supreme Court proceeding 12875/15 (“this proceeding”); and

(ii) the defendant’s costs of defending any interlocutory appeal in this proceeding; and

(iii) other bona fide expenses of the estate of Maria Aronis.

3. For the avoidance of doubt, paragraph 2 of this order does not authorise, and the prior written consent of the plaintiff’s solicitors or the further leave of the Court is required, before the funds referred to in paragraph 1 of this order may be applied:

(a) in repayment of any money which Matty Aronis, in her personal capacity, has advanced to the estate of Maria Aronis (deceased), whether:

(i) in connection with this proceeding; or

(ii) in connection with Supreme Court proceeding 10436/19 (“the probate proceeding”); or

(iii) for any other purpose; or

(b) to defend the probate proceeding.

4. Pursuant to s 96 of the Trusts Act 1973 (Qld), the Court declares that the defendant is justified in:

(a) selling 74 Vulture Street; and

(b) applying the sale proceeds as set out in paragraphs 1 to 3 of this order.

5. The trial listed to commence on 31 May 2021 is adjourned to 10.00 am on 30 August 2021 for a ten-day trial before Jackson J.

6. The defendant has leave to uplift and take copies of the documents produced, as at the date of this order, in response to subpoenas issued at the request of the plaintiff on 16 March 2021 (“the subpoenaed documents”).

7. Within 7 days of this order, the defendant (by her solicitors) must:

(a) uplift and take copies of the subpoenaed documents;

(b) review the subpoenaed documents to form a reasonable belief as to whether the subpoenaed documents, or any of them, or any parts of them, are irrelevant to:

(i) the issues in this proceeding; or

(ii) the mental capacity of Maria Aronis at or about the time she gave instructions to defend this proceeding; or

(iii) the mental capacity of Maria Aronis at or about the time she made her affidavit filed in this proceeding;

(c) supply to the plaintiff’s solicitors copies of all of the subpoenaed documents, excepting any of them, or any parts of them, in respect of which a reasonable belief has been reached in accordance with subparagraph (b); and

(d) provide an index of the subpoenaed documents which:

(i) contains a sufficient description of each of the subpoenaed documents so that they can be individually identified; and

(ii) identifies which documents or parts of documents (if any) have not been supplied to the plaintiff’s solicitors in accordance with subparagraph (c).

8. If, after the date of this order, any further documents are produced in response to the subpoenas issued at the request of the plaintiff on 16 March 2021, then:

(a) subject to subparagraph (b) hereof, the provisions of paragraphs 6 and 7 of this order shall apply to and in respect of such documents; and

(b) in respect of such documents, the period of 7 days stipulated in paragraph 7 of this order shall run from the date on which the plaintiff’s solicitors inform the defendant’s solicitors, in writing or by email, that such further documents have been produced.

9. The plaintiff has liberty to apply to the Court on 3 days’ notice for orders that they be provided access to any document or part of a document not provided by the defendant in compliance with (or in purported compliance with) paragraphs 7 and 8 of this order.

10. The costs of the defendant’s application to adjourn the trial be each party’s costs in this proceeding.

11. The plaintiff pay the defendant’s costs of:

(a) the application filed on 26 March 2021 to remove the caveat; and

(b) the application filed on 8 April 2021 under r 422B(5) of the Uniform Civil Procedure Rules 1999 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Aronis & Anor v Aronis [2021] QSC 87
PARTIES:	THEODORA LOULA ARONIS AS EXECUTOR OF THE ESTATE OF PETER GEORGE ARONIS (DECEASED) (first plaintiff) THEODORA LOULA ARONIS (second plaintiff) v MATINA ARONIS AS EXECUTOR OF THE ESTATE OF MARIA ARONIS (DECEASED) (defendant)
FILE NO:	SC No 12875 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	29 April 2021
DELIVERED EX TEMPORE AT:	Brisbane
HEARING DATE:	20 April 2021
JUDGE:	Flanagan J
ORDERS:	1. Pursuant to s 127 of the *Land Title Act* 1994 (Qld), Caveat No. 716825957 over property located at 74 Vulture Street, West End in the State of Queensland, properly described as Lot 2 on Registered Plan 11157, Title Reference 11525014 (“74 Vulture Street”) be removed, on the condition that: (a) the net proceeds of any sale of 74 Vulture Street, after payment of any agent’s commission, selling costs, and other usual adjustments on sale, be paid into the trust account of the defendant’s solicitors; (b) such funds not be dealt with or disbursed except: (i) in accordance with paragraph 2 of this order; or (ii) with the prior written consent of the plaintiff’s solicitors; or (iii) with the Court’s leave. 2. The funds referred to in paragraph 1 of this order may be applied: (a) by payment in respect of maintenance, repairs, rates, land tax and other charges in relation to Lot 1 on Registered Plan 92106, Title Reference 13403001, described as 3 Hayling Street, Salisbury; (b) by payment in respect of maintenance, repairs, rates, land tax and other charges in relation to: (i) Lot 4 on Registered Plan 92106, Title Reference 13296123; (ii) Lot 5 on Registered Plan 92106, Title Reference 13296124; and (iii) Lot 6 on Registered Plan 92106, Title Reference 13296126, collectively described as 17 Hayling Street, Salisbury; (c) by payment in respect of maintenance, repairs, rates, land tax and other charges in relation to Lot 142 on Registered Plan 45158, Title Reference 12765113, described as 99 Burn Street, Camp Hill; (d) by payment of: (i) the defendant’s costs and disbursements in Supreme Court proceeding 12875/15 (“this proceeding”); and (ii) the defendant’s costs of defending any interlocutory appeal in this proceeding; and (iii) other bona fide expenses of the estate of Maria Aronis. 3. For the avoidance of doubt, paragraph 2 of this order does not authorise, and the prior written consent of the plaintiff’s solicitors or the further leave of the Court is required, before the funds referred to in paragraph 1 of this order may be applied: (a) in repayment of any money which Matty Aronis, in her personal capacity, has advanced to the estate of Maria Aronis (deceased), whether: (i) in connection with this proceeding; or (ii) in connection with Supreme Court proceeding 10436/19 (“the probate proceeding”); or (iii) for any other purpose; or (b) to defend the probate proceeding. 4. Pursuant to s 96 of the *Trusts Act* 1973 (Qld), the Court declares that the defendant is justified in: (a) selling 74 Vulture Street;…