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…
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- 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
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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