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Bellman v Peters

Bellman v Peters

Case [2020] VSCA 143 3 June 2020

Admissibility of Evidence

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0026
S APCI 2019 0047

KEVIN GRAEME PHILLIP BELLMAN (as executor of the estate of BRENDA MAY BELLMAN, deceased)	Applicant
v
JOYCE MAY PETERS (as executor and trustee of the estate of EDWARD RICHARD PETERS, deceased and in her personal capacity)	Respondent

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JUDGES:	TATE, KYROU and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2020, 27 May 2020
DATE OF ORDERS	27 May 2020
DATE OF REASONS:	3 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 143
JUDGMENT APPEALED FROM:	Bellman v Peters (Unreported, Supreme Court of Victoria, McMillan J, 20 December 2018) (Ruling); [2019] VSC 200 (McMillan J)

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PROBATE AND ADMINISTRATION – Deceased died in 1994 – Will named respondent as executor and trustee and left estate to five children as tenants in common in equal shares – Main assets of estate an interest in land subject to mortgage and one of two shares in a company – Executor owned other share – Probate of will in 1995 – Inventory of assets and liabilities incorrectly listed interest in land as sole asset and did not list any liabilities – In 1998 executor transferred estate’s interest in land to company for $200,000 all of which was paid to mortgagee – No steps by executor to finalise administration of estate until after applicant sought information about assets of estate and its administration in 2017.

PROBATE AND ADMINISTRATION – Application for order for respondent to file administration account – Consent order made – Administration account filed – Included nominal value of share in company rather than market value – Applicant challenged adequacy of administration account – Whether judge erred in finding administration account compliant – Administration and Probate Act 1958 s 28(1) – Appeal allowed.

LEGAL PERSONAL REPRESENTATIVES – Application for removal of respondent as executor and trustee – Alleged conflict of interest in sale of interest in land to company – Alleged failure to properly administer estate – Whether judge failed to give proper consideration to removal application – Appeal allowed.

PRACTICE AND PROCEDURE – Order allowing appeal by consent – Circumstances in which such an order can be made.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M C McKenzie	Prior Law
For the Respondent	Mr J Smith	Hibbert & Hodges Lawyers

TATE JA
KYROU JA
McLEISH JA:

Introduction

These applications for leave to appeal against orders made by a judge in the Trial Division were heard on 7 February 2020. On that day, we reserved our decision and, by consent, made an order that the parties attend a mediation before an associate judge of the Supreme Court. Following a successful mediation on 27 February 2020, in May 2020, the parties submitted proposed consent orders to the Court which included orders setting aside the judge’s orders. They informed us that the Trial Division proceeding will be discontinued, with no order as to costs.

Allowing an appeal by consent is not a mere exercise in ‘rubber stamping’.[1] The…

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 Bellman v Peters

Details

AGLC: Kevin Graeme Phillip Bellman (as executor of the estate of Brenda May Bellman, deceased) v Joyce May Peters (as executor and trustee of the estate of Edward Richard Peters, deceased and in her personal capacity) [2020] VSCA 143
Case: [2020] VSCA 143
Decision Date: 3 June 2020

CaseChat Overview and Summary

In Bellman v Peters, the applicant sought orders for the respondent, who was the executor and trustee of the estate of the deceased, to file an administration account and to be removed from their roles. The estate was left to five children as tenants in common, with the main assets being an interest in land and a share in a company. The respondent incorrectly listed the estate's assets and did not list any liabilities when probate was granted. The respondent later transferred the estate's interest in land to a company for $200,000, which was paid to the mortgagee. The applicant only sought information about the estate's assets and administration in 2017.

The court was required to decide whether the administration account filed by the respondent was compliant with the relevant legislation, specifically the Administration and Probate Act 1958. The court also needed to determine if the judge erred in not removing the respondent as executor and trustee due to alleged conflicts of interest and failure to properly administer the estate. The court was further required to consider the circumstances in which an appeal could be allowed by consent.

The court found that the administration account was not compliant as it included the nominal value of the share in the company rather than the market value. The court held that the judge erred in not considering the removal application properly and found that there was a conflict of interest in the sale of the interest in land to the company. The court allowed the appeal by consent and set aside the orders that had been made. The court held that an appeal by consent can be made in appropriate circumstances, such as where there is a clear error of law and the parties agree to the appeal.

Orders