Australian Unity Trustees Ltd v Tsatsaronis - [2023] VSC 796

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2023 11286

IN THE MATTER of the estate of DIMITRIOS TSATSARONIS deceased

BETWEEN:

AUSTRALIAN UNITY TRUSTEES LIMITED	Plaintiff
v
NIKOLAS TSATSARONIS	Caveator

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JUDGE:	Gobbo AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2023 and 7 December 2023
DATE OF RULING:	22 December 2023
CASE MAY BE CITED AS:	Australian Unity Trustees Ltd v Tsatsaronis
MEDIUM NEUTRAL CITATION:	[2023] VSC 796

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PRACTICE AND PROCEDURE — Rule 8.03(2) of the Supreme Court (Administration and Probate) Rules 2014 (Vic) — Caveat has expired— Circumstances where a Court will “otherwise order” — No order appropriate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Pitt SC	Moores
For the Caveator	Mr N Tsatsaronis (27 November 2023 only)

Contents

A.. Background

B.. Self-Represented Litigant

C.. History

D.. Legal Principles

E... Plaintiff’s submissions

F... Caveator’s submissions

G.. Analysis

H.. Conclusion

HER HONOUR:

A Background

By summons filed on 29 August 2023 (‘Application’), the plaintiff seeks orders, inter alia:
(a)that pursuant to Rule 8.03(2) of the Supreme Court (Administration and Probate) Rules 2014 (Vic) (‘Chapter III Rules’), the caveat filed by the caveator on 26 May 2023 has expired;
(b)that subject to the requirements of the Registrar of Probates, probate of the Will of the deceased dated 21 May 2006 (‘Will’) be granted to the plaintiff; and
(c)costs.
The plaintiff relies upon the following material:
(a)affidavit in support of the application for probate sworn by Jessica Luca on 22 May 2023 and the exhibits thereto;
(b)affidavit of due execution of Maria Likoudis sworn on 17 May 2023;
(c)affidavit of NAATI accredited translator Niki Baras sworn on 17 May 2023;
(d)affidavit of Lachlan Arthur McKenzie affirmed on 24 August 2023 and the exhibits thereto;
(e)affidavit of Lachlan Arthur McKenzie affirmed on 16 November 2023 and the exhibits thereto; and
(f)written outline of submission dated 16 November 2023.
By Order of Keith JR made on 15 September 2023, the caveator was ordered to file and serve any affidavits upon which he seeks to rely in respect to the Application by 4:00pm on 20 October 2023 and to file and serve an outline of submissions 4:00pm on 13 November 2023. The caveator did not comply with those Orders. The affidavit of Lachlan McKenzie affirmed on 16 November 2023 refers to multiple reminders to the caveator of the terms of the Order of Keith JR made on 15 September 2023 and the need for compliance.
On 27 November 2023, Moore J made orders pursuant to r 77.05(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), that the proceeding be referred to me for hearing and determination.
On 27 November 2023, the Application was listed for hearing. At the commencement of the hearing, the matter was called inside and outside the courtroom. There was no answer to the call by the caveator. After hearing the plaintiff’s…

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.

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Details

Case: [2023] VSC 796
Decision Date: 22 December 2023

CaseChat Overview and Summary

The case of Australian Unity Trustees Ltd v Tsatsaronis involved a dispute concerning the expiration of a caveat and the appropriateness of an order under Rule 8.03(2) of the Supreme Court (Administration and Probate) Rules 2014 (Vic). The plaintiff, Australian Unity Trustees Ltd, sought a determination on the circumstances in which the court should otherwise order a party to take a specified action after the expiration of a caveat. The defendant, Tsatsaronis, opposed the application on the basis that no order was appropriate.

The central legal issue before the court was whether, upon the expiration of a caveat, the court should exercise its discretion to make an order under Rule 8.03(2) in the absence of a request by any party. The court needed to consider whether the circumstances warranted such an order and whether any prejudice to the parties or the administration of justice would result from the making of the order. The court was also required to assess the appropriate exercise of discretion in the context of the particular facts of the case.

In delivering the judgment, the court found that the circumstances did not justify an order under Rule 8.03(2) after the expiration of the caveat. The court held that it would not otherwise order a party to take a specified action in the absence of a request from any party. The court emphasised that each case must be assessed on its own facts and that the making of such an order should be exceptional. The court found that in this case, no such exceptional circumstances were present, and therefore, no order was appropriate. The court's decision highlighted the importance of discretion and the need for specific circumstances to warrant an order under the rule.

The final orders of the court were that no order be made under Rule 8.03(2) of the Supreme Court (Administration and Probate) Rules 2014 (Vic) following the expiration of the caveat. The court's decision underscored the need for a cautious approach to the exercise of discretion in such matters, ensuring that any order made is justified by the specific circumstances of the case.

Orders