Aronis v Aronis; Aronis v Aronis - [2019] QSC 275

SUPREME COURT OF QUEENSLAND

CITATION:

Aronis v Aronis & Anor; Aronis & Anor v Aronis [2019] QSC 275

PARTIES:

In proceeding BS 11046/19:

MATINA ARONIS AS EXECUTOR OF THE ESTATE OF MARIA ARONIS (DECEASED)

(Applicant)

v

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

(First Respondent)

THEODORA LOULA ARONIS

(Second Respondent)

In proceeding BS 12875/15:

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/S:

BS No 11046 of 2019; BS No 12875 of 2015

DIVISION:

Trial Division

PROCEEDING:

Applications

DELIVERED ON:

8 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2019

JUDGE:

Bowskill J

ORDERS:

In proceeding BS 11046/19:

1. Caveat No. 711747946 over 95 Burn Street (Lot 143 on Registered plan 451586, County of Stanley, Parish of Bulimba, Title Reference 12833117) (95 Burn Street) be removed subject to the following conditions:

(a)         95 Burn Street may be mortgaged, but not sold, provided that any mortgage loan funds are paid into a trust account operated by Cooper Grace Ward;

(b)   any mortgage loan funds secured by 95 Burn Street:

(i)    must be dealt with in accordance with subparagraphs (b)(ii)-(v) of this order, or otherwise:

(A)    any further order of the Court; or

(B)    the written agreement of the plaintiffs;

(ii)   may be used for the administration, maintenance and repair of the estate properties and the payment of other outgoings;

(iii) may be used for legal costs and disbursements in respect of proceeding BS 10436/19, and any subsequent application by Matty Aronis seeking probate of Maria’s 2016 will in solemn form;

(iv) may be used for legal costs and disbursements in respect of proceeding BS 12875/15 (the Constructive Trust Proceeding), this proceeding BS 11046/19 and appeal proceeding CA 10524/19;

(v)   may not be used to repay any of the money Matty Aronis, in her personal capacity, has loaned to the estate.

2. The application filed on 10 October 2019 is otherwise adjourned to a date to be fixed.

3. The parties’ costs be costs in the Constructive Trust proceeding.

In proceeding BS 12875/15:

1. The application filed 23 October 2019 is dismissed.

2. The parties’ costs be costs in the proceeding.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – where the applicant executor applies for an order that the respondents’ caveat over part of the estate property, the subject of a claim by the respondents against the estate for declarations the estate property is held on a constructive trust for the respondents, which proceedings were commenced against the deceased before her death, be removed so that the property can be sold and the proceeds used to pay for, among other things, the costs incurred by the applicant as executor of the estate in defending the constructive trust proceeding and other probate proceedings – where the applicant applies for directions under s 96…

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; Aronis v Aronis

Details

AGLC: Aronis v Aronis; Aronis v Aronis [2019] QSC 275
Case: [2019] QSC 275
Decision Date: 8 November 2019

CaseChat Overview and Summary

The case involves two applications filed in the Supreme Court of Queensland by Matty Aronis, the executor of her mother Maria Aronis’ estate, against her sister and brother, respectively, in relation to the estate property. The first application sought an order for the respondents’ caveat over part of the estate property to be removed so the property could be sold, and the proceeds used to pay for costs incurred in defending proceedings, including a claim by the respondents for a constructive trust over the estate property. The second application sought directions that the executor was justified in selling the property and using the proceeds in that way, and in continuing to defend the constructive trust proceeding as executor. The respondents contended that since the executor was the primary beneficiary under the deceased’s will, she should fund the defence of the constructive trust proceeding at her own personal expense and risk as to costs. The court had to determine what was practical and fair in determining directions to be given.

The legal issues before the court were whether the executor could use estate funds to pay for the costs of defending proceedings, including a claim by the respondents for a constructive trust over the estate property, and whether the executor should be joined as a second defendant in her personal capacity in the constructive trust proceeding. The court considered the relevant statutory provisions, case law and equitable principles, and the circumstances of the case, including the relationship between the parties, the nature and extent of the claims and the risk of costs. The court found that it was practical and fair for the executor to use estate funds to pay for the costs of defending the proceedings, and that the executor should not be joined as a second defendant in her personal capacity in the constructive trust proceeding.

The court ordered that the respondents’ caveat over the estate property be removed, subject to certain conditions, including that the property could be mortgaged but not sold, and that any mortgage loan funds could be used for certain purposes but not to repay any money loaned to the estate by Matty Aronis in her personal capacity. The court also ordered that the application for directions be adjourned, and that the parties’ costs be costs in the Constructive Trust proceeding and in the other proceeding. The court dismissed the application to join the executor as a second defendant in her personal capacity in the constructive trust proceeding, and ordered that the parties’ costs be costs in the proceeding.

No additional paragraph is needed as the orders made by the court are set out in the final paragraph of the summary.

Orders

Orders of the court

In proceeding BS 11046/19:

1. Caveat No. 711747946 over 95 Burn Street (Lot 143 on Registered plan 451586, County of Stanley, Parish of Bulimba, Title Reference 12833117) (95 Burn Street) be removed subject to the following conditions:

(a) 95 Burn Street may be mortgaged, but not sold, provided that any mortgage loan funds are paid into a trust account operated by Cooper Grace Ward;

(b) any mortgage loan funds secured by 95 Burn Street:

(i) must be dealt with in accordance with subparagraphs (b)(ii)-(v) of this order, or otherwise:

(A) any further order of the Court; or

(B) the written agreement of the plaintiffs;

(ii) may be used for the administration, maintenance and repair of the estate properties and the payment of other outgoings;

(iii) may be used for legal costs and disbursements in respect of proceeding BS 10436/19, and any subsequent application by Matty Aronis seeking probate of Maria’s 2016 will in solemn form;

(iv) may be used for legal costs and disbursements in respect of proceeding BS 12875/15 (the Constructive Trust Proceeding), this proceeding BS 11046/19 and appeal proceeding CA 10524/19;

(v) may not be used to repay any of the money Matty Aronis, in her personal capacity, has loaned to the estate.

2. The application filed on 10 October 2019 is otherwise adjourned to a date to be fixed.

3. The parties’ costs be costs in the Constructive Trust proceeding.

In proceeding BS 12875/15:

1. The application filed 23 October 2019 is dismissed.

2. The parties’ costs be costs in the proceeding.

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 v Aronis & Anor; Aronis & Anor v Aronis [2019] QSC 275
PARTIES:	In proceeding BS 11046/19: MATINA ARONIS AS EXECUTOR OF THE ESTATE OF MARIA ARONIS (DECEASED) (Applicant) v THEODORA LOULA ARONIS AS EXECUTOR OF THE ESTATE OF PETER GEORGE ARONIS (DECEASED (First Respondent) THEODORA LOULA ARONIS (Second Respondent) In proceeding BS 12875/15: 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/S:	BS No 11046 of 2019; BS No 12875 of 2015
DIVISION:	Trial Division
PROCEEDING:	Applications
DELIVERED ON:	8 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2019
JUDGE:	Bowskill J
ORDERS:	In proceeding BS 11046/19: 1. Caveat No. 711747946 over 95 Burn Street (Lot 143 on Registered plan 451586, County of Stanley, Parish of Bulimba, Title Reference 12833117) (95 Burn Street) be removed subject to the following conditions: (a) 95 Burn Street may be mortgaged, but not sold, provided that any mortgage loan funds are paid into a trust account operated by Cooper Grace Ward; (b) any mortgage loan funds secured by 95 Burn Street: (i) must be dealt with in accordance with subparagraphs (b)(ii)-(v) of this order, or otherwise: (A) any further order of the Court; or (B) the written agreement of the plaintiffs; (ii) may be used for the administration, maintenance and repair of the estate properties and the payment of other outgoings; (iii) may be used for legal costs and disbursements in respect of proceeding BS 10436/19, and any subsequent application by Matty Aronis seeking probate of Maria’s 2016 will in solemn form; (iv) may be used for legal costs and disbursements in respect of proceeding BS 12875/15 (the Constructive Trust Proceeding), this proceeding BS 11046/19 and appeal proceeding CA 10524/19; (v) may not be used to repay any of the money Matty Aronis, in her personal capacity, has loaned to the estate. 2. The application filed on 10 October 2019 is otherwise adjourned to a date to be fixed. 3. The parties’ costs be costs in the Constructive Trust proceeding. In proceeding BS 12875/15: 1. The application filed 23 October 2019 is dismissed. 2. The parties’ costs be costs in the proceeding.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – where the applicant executor applies for an order that the respondents’ caveat over part of the estate property, the subject of a claim by the respondents against the estate for declarations the estate property is held on a constructive trust for the respondents, which proceedings were commenced against the deceased before her death, be removed so that the property can be sold and the proceeds used to pay for, among other things, the costs incurred by the applicant as executor of the estate in defending the constructive trust proceeding and other probate proceedings – where the applicant applies for directions under s 96…