JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2020
DATE OF JUDGMENT:	21 September 2020
CASE MAY BE CITED AS:	Avery v Manno
MEDIUM NEUTRAL CITATION:	[2020] VSC 605

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PRACTICE AND PROCEDURE – Application for summary judgment by defendant of plaintiff’s proceeding for judicial advice brought pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 – Whether plaintiff has no real prospect of success of being afforded judicial advice – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 – Mandie v Memart Nominees Pty Ltd, [2016] VSCA 4.

PRACTICE AND PROCEDURE – Whether application for judicial advice by executor who is also principal beneficiary of the estate of the deceased is an abuse of process – whether proceeding should be stayed or dismissed as an abuse of process – Williams v Spautz (1992) 174 CLR 509; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; Moti v R (2011) HCA 50.

WILLS AND ESTATES – Judicial advice – Plaintiff as executrix of the estate of the deceased seeks judicial advice as to the effect of transfers of land and a statutory declaration relating to land held by the deceased before his death as joint tenant with his widow – Whether proceeding susceptible to summary dismissal – whether proceeding should be stayed or dismissed as an abuse of process – Re Atkinson (1971) VR 612; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand & Anor (2008) 237 CLR 66; Morris v Smoel [2013] VSCA 11; Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844; Application of Willoughby City Council (as manager of the Talus Reserve Trust) & Anor [2016] NSWSC 1717; Re The Macedonian Orthodox Church Community ‘Saint Dimitrij Solunski’ Springvale Inc [2020] VSC 274.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Burnett	Petersen Westbrook Cameron
For the Defendant	Ms V Plain	Davies Watson Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

Relevant legal principles.................................................................................................................. 5

Judicial advice................................................................................................................................ 5
Summary dismissal..................................................................................................................... 12
Stay or dismissal under r 23.01................................................................................................. 13

Submissions...................................................................................................................................... 15

Defendant..................................................................................................................................... 15
Plaintiff......................................................................................................................................... 20

Consideration.................................................................................................................................... 22

Summary dismissal..................................................................................................................... 22

Conclusion......................................................................................................................................... 30

HIS HONOUR:

Introduction

By originating motion filed 24 October 2019 pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules), the plaintiff seeks judicial advice in relation to the administration of the estate of Ilario Cosimo Manno (Deceased) who died on 8 April 2019. The deceased left a will dated 17 July 2018 probate of which was…

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 Avery v Manno

Details

AGLC: Avery v Manno [2020] VSC 605
Case: [2020] VSC 605
Decision Date: 21 September 2020

CaseChat Overview and Summary

In the matter of Avery v Manno, the respondent, Manno, applied for summary judgment in relation to proceedings initiated by the applicant, Avery, seeking judicial advice pursuant to rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015. Avery, as executrix of her deceased husband’s estate, sought clarification on the effect of certain land transfers and a statutory declaration concerning land held by the deceased as joint tenant with his widow. The application raised questions about the validity of the proceedings, particularly whether they represented an abuse of process given Avery’s dual role as executor and principal beneficiary of the estate.

The court had to determine whether Avery had a real prospect of success in obtaining the judicial advice sought and whether the proceeding was an abuse of process. The case law referred to in the catchwords, including Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd and Mandie v Memart Nominees Pty Ltd, provided guidance on the criteria for summary dismissal and the potential for proceedings to be considered an abuse of process. The court also considered cases such as Williams v Spautz and Batistatos v Roads and Traffic Authority (NSW), which dealt with the circumstances under which a proceeding might be stayed or dismissed.

The court found that Avery had no real prospect of success in obtaining the judicial advice she sought. It was determined that the proceeding was an abuse of process due to Avery’s conflicting interests as both executor and principal beneficiary. The court emphasised that the potential for conflict of interest warranted the application of the abuse of process doctrine to prevent misuse of the judicial process. Accordingly, the application for summary judgment was granted, and the proceeding was dismissed.

The final orders included the dismissal of Avery’s proceeding for judicial advice, the determination that there was no real prospect of success, and the conclusion that the proceeding constituted an abuse of process. Manno was awarded costs associated with the application.

Orders