Aronis v Aronis (No 2) - [2020] QCA 153

SUPREME COURT OF QUEENSLAND

CITATION:

Aronis & Anor v Aronis (No 2) [2020] QCA 153

PARTIES:

THEODORA LOULA ARONIS AS EXECUTOR OF THE ESTATE OF PETER GEORGE ARONIS (DECEASED)
(first appellant)
THEODORA LOULA ARONIS
(second appellant)
v
MATTY ARONIS AS EXECUTOR OF THE ESTATE OF MARIA ARONIS (DECEASED)
(respondent)

FILE NO/S:

Appeal No 12617 of 2019
SC No 12875 of 2015
SC No 11046 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2019] QSC 275 (Bowskill J)

DELIVERED ON:

Date of Order: 20 February 2020
Date of Publication of Reasons: 21 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2020

JUDGES:

Sofronoff P and Morrison and Mullins JJA

ORDER:

Order made 20 February 2020:

Appeal dismissed with costs.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – PARTICULAR CASES – where the appellant claims declarations for constructive trusts over various properties as a result of alleged breaches by her husband’s parents of oral agreements and representations made in 1979, 1991 and 1993 and the conduct of her husband and her in reliance on those agreements and representations – where her mother-in-law defended the proceeding – where the mother-in-law died and her executor who was the deceased’s daughter was substituted as the defendant in the proceeding – where the executor was the beneficiary of the deceased’s estate – where the executor continued defending the proceeding with her own funds – where the executor sought judicial advice on continuing to defend the proceeding and to use estate funds to do so – where the executor did not provide a legal opinion to the court as to the prospects of defending the proceeding – where there were affidavits from the appellant and her mother-in-law about the alleged oral agreements and representations – whether the primary judge erred in permitting the executor to use funds raised by mortgaging an estate property to meet the legal costs of defending the proceeding

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – OTHER MATTERS – where the appellant claims declarations for constructive trusts over various properties as a result of alleged breaches by her husband’s parents of oral agreements and representations made in 1979, 1991 and 1993 and the conduct of her husband and her in reliance on those agreements and representations – where her mother-in-law defended the proceeding – where the mother-in-law died and her executor who was the deceased’s daughter was substituted as the defendant in the proceeding – where the executor was the beneficiary of the deceased’s estate – where the primary judge found the appellant had no better than a 50/50 chance of success on the constructive trusts claim – where the primary judge considered the circumstances regarding a will and power of attorney signed by the deceased in 1991 were a concerning feature – where the primary judge considered…

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 (No 2)

Details

AGLC: Aronis v Aronis (No 2) [2020] QCA 153
Case: [2020] QCA 153
Decision Date: 21 July 2020

CaseChat Overview and Summary

In the matter of Aronis v Aronis (No 2), the appellant sought declarations for constructive trusts over various properties, claiming breaches of oral agreements and representations made in 1979, 1991, and 1993 by her husband’s parents. These claims were premised on her reliance on these agreements and representations, which were allegedly breached by her husband and his parents. The mother-in-law defended the proceeding before her death, and her executor, who was also the beneficiary of the deceased’s estate, was substituted as the defendant. This executor continued to defend the proceeding using her own funds, subsequently seeking judicial advice on whether to use estate funds to meet the legal costs of the defence. The court was tasked with determining whether the primary judge erred in permitting the executor to use funds raised by mortgaging an estate property to fund the legal costs.

The legal issues before the court involved the executor's authority to use estate funds for the defence and whether the primary judge erred in considering certain factors in making his decision. Specifically, the court had to assess whether the primary judge took into account irrelevant considerations when concluding it was in the best interests of the estate for the executor to continue defending the proceeding, particularly given the circumstances surrounding the will and power of attorney signed by the deceased in 1991 and the financial situation of the executor. Additionally, the court had to evaluate whether the primary judge erred in permitting the executor to use estate funds for the defence without obtaining a legal opinion on the prospects of success in the constructive trust proceeding.

The court found that the primary judge had not erred in permitting the executor to use estate funds to meet the legal costs of defending the proceeding. The primary judge had carefully considered the relevant circumstances, including the will and power of attorney and the financial circumstances of the executor. The court concluded that the primary judge's decision was well-reasoned and did not involve irrelevant considerations. The court also noted that the primary judge's decision to allow the executor to access estate funds for the defence was subject to further review if circumstances changed as the proceeding progressed. Consequently, the appeal was dismissed with costs.

ORDERS:
Order made 20 February 2020:
Appeal dismissed with costs.

Orders

Orders of the court

Order made 20 February 2020:

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ground 15 is another catchall ground. It is based on the errors identified in grounds 5 to 14 and adds nothing to the other grounds.Conclusion The appellant did not succeed on any of the grounds of appeal. The primary judge made a direction to permit the respondent to access funds obtained by mortgaging one of the estate’s properties which could be used for funding the costs of the estate’s defence of the constructive trust proceeding going forward. It is relevant that the respondent’s application for that direction was otherwise adjourned to a date to be fixed, as the direction allowing that access was expressly subject to any further order of the court. That was prudent, as the question of the propriety of the respondent’s costs being funded from the estate can be reviewed, if circumstances change, as the constructive trust proceeding progresses.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Aronis & Anor v Aronis (No 2) [2020] QCA 153
PARTIES:	THEODORA LOULA ARONIS AS EXECUTOR OF THE ESTATE OF PETER GEORGE ARONIS (DECEASED) (first appellant) THEODORA LOULA ARONIS (second appellant) v MATTY ARONIS AS EXECUTOR OF THE ESTATE OF MARIA ARONIS (DECEASED) (respondent)
FILE NO/S:	Appeal No 12617 of 2019 SC No 12875 of 2015 SC No 11046 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2019] QSC 275 (Bowskill J)
DELIVERED ON:	Date of Order: 20 February 2020 Date of Publication of Reasons: 21 July 2020
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2020
JUDGES:	Sofronoff P and Morrison and Mullins JJA
ORDER:	Order made 20 February 2020: Appeal dismissed with costs.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – PARTICULAR CASES – where the appellant claims declarations for constructive trusts over various properties as a result of alleged breaches by her husband’s parents of oral agreements and representations made in 1979, 1991 and 1993 and the conduct of her husband and her in reliance on those agreements and representations – where her mother-in-law defended the proceeding – where the mother-in-law died and her executor who was the deceased’s daughter was substituted as the defendant in the proceeding – where the executor was the beneficiary of the deceased’s estate – where the executor continued defending the proceeding with her own funds – where the executor sought judicial advice on continuing to defend the proceeding and to use estate funds to do so – where the executor did not provide a legal opinion to the court as to the prospects of defending the proceeding – where there were affidavits from the appellant and her mother-in-law about the alleged oral agreements and representations – whether the primary judge erred in permitting the executor to use funds raised by mortgaging an estate property to meet the legal costs of defending the proceeding APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – OTHER MATTERS – where the appellant claims declarations for constructive trusts over various properties as a result of alleged breaches by her husband’s parents of oral agreements and representations made in 1979, 1991 and 1993 and the conduct of her husband and her in reliance on those agreements and representations – where her mother-in-law defended the proceeding – where the mother-in-law died and her executor who was the deceased’s daughter was substituted as the defendant in the proceeding – where the executor was the beneficiary of the deceased’s estate – where the primary judge found the appellant had no better than a 50/50 chance of success on the constructive trusts claim – where the primary judge considered the circumstances regarding a will and power of attorney signed by the deceased in 1991 were a concerning feature – where the primary judge considered…