Azzopardi v R - [2011] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0168

CAROLINE WOOD and ALAN STEPHEN JACK	Applicants
	v
EWAN BRUCE MCLEAN (who is sued in his capacity as Executor of the Estate of ALFRED BASIC JACK, deceased) - and – ELIZABETH MICHAELA JACK	First Respondent
	Second Respondent

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JUDGES:	REDLICH and MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2011
DATE OF JUDGMENT:	18 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 37

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PRACTICE AND PROCEDURE – Standing – Deceased transferred property to a daughter during his lifetime – Executor failed or refused to bring proceeding to set aside transfer – The applicants, two other children of the deceased who were not beneficiaries under the deceased’s will, sought to bring proceeding to set aside transfer – The applicants had also instituted a claim under Part IV of the Administration and Probate Act 1958 (Vic) – Judge permanently stayed the proceeding seeking to set aside the transfer on the ground that the applicant lacked standing – Application for leave to appeal.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr S P Newton	Kennedy Guy Lawyers
For the First Respondent	Mr R T A Waddell	ResourcesLaw International
For the Second Respondent	Mr J O’Bryan	Holding Redlich

REDLICH JA
MANDIE JA:

The applicants seek leave to appeal from an interlocutory judgment of a judge in the Trial Division whereby it was ordered that their proceeding be permanently stayed.

The applicants, who are two of the children of Alfred Basil Jack deceased, commenced a proceeding against the executor of the estate of the deceased and against another child of the deceased, a daughter, seeking to set aside, on equitable grounds, a transfer inter vivos made by the deceased in favour of that daughter of his residential property. The applicants are not beneficiaries under the deceased’s will and the estate of the deceased still contains assets, despite the above transfer, valued in excess of $400,000.

The applicants have a separate proceeding on foot under Part IV of the Administration and Probate Act 1958 (Vic) seeking provision out of the estate of the deceased.

In the proceeding seeking to attack the transfer, the applicants allege that they are entitled to the relief sought in circumstances where the executor has himself failed or refused to institute a proceeding attacking the transfer. The respondents applied to have this proceeding struck out on the basis that the applicants had no standing to bring it given that they are not beneficiaries of the estate and do not have even a contingent interest therein despite their proceeding under Part IV. An associate justice declined to strike out the applicants’ proceeding but, on appeal, the judge made an order for a permanent stay thereof.

The parties have proceeded from the mutual assumption that the applicants would have had no standing to bring the proceeding but for the fact that the applicants had also commenced a proceeding under Part IV of the Administration and Probate Act. The respondents submitted…

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 Azzopardi v R

Details

AGLC: Azzopardi v R [2011] VSCA 37
Case: [2011] VSCA 37
Decision Date: 18 February 2011

CaseChat Overview and Summary

The applicants, who were two of the deceased's children, sought to bring a proceeding to set aside a property transfer made by the deceased to his daughter during his lifetime. The executor of the deceased's estate had either failed or refused to bring such a proceeding. The applicants were not beneficiaries under the deceased's will and sought to challenge the validity of the transfer. They also instituted a claim under Part IV of the Administration and Probate Act 1958 (Vic). The judge ruled that the applicants lacked standing to bring the proceeding to set aside the transfer and permanently stayed the proceeding. The applicants then sought leave to appeal the decision.

The primary legal issue before the court was whether the applicants had standing to bring the proceeding to set aside the property transfer. The applicants argued that they had a legitimate interest in the estate and that the executor's failure to act warranted their intervention. The court had to determine if the applicants' claims were sufficient to establish standing and if they had a legitimate interest in the proceedings. The court also had to consider the implications of the Administration and Probate Act 1958 (Vic) on the applicants' claims.

The court held that the applicants did not have standing to bring the proceeding to set aside the transfer. The court found that the applicants had not established a sufficient interest in the estate to warrant their intervention. The court further held that the applicants' claims under the Administration and Probate Act 1958 (Vic) did not provide them with the necessary standing. The judge's decision to permanently stay the proceeding was upheld, and the applicants' application for leave to appeal was dismissed. The court emphasised that the applicants' claims did not provide them with the requisite standing to challenge the property transfer, and their interests were adequately represented by the executor.

Orders