Brito-Babapulle v Brito-Babapulle - [2024] VSC 281

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 02419

IN THE MATTER of an Application under s 34(1)b and/or s 34(1)(c) of the Administration and Probate Act 1958, ss 41, 45, 48, 50 and 51 of the Trustee Act 1958 and Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 and the inherent jurisdiction of the Court

and

IN THE MATTER of the Will and Estate of MARY BEATRICE KAMALA BRITO-BABAPULLE, deceased

BETWEEN:

ASHAN COLIN BERNARD BRITO-BABAPULLE (in his capacity as one of the executors of the estate of the late Mary Beatrice Kamala Brito-Babapulle, deceased and personally)	Plaintiff
v
TANIA ASHANTI BRITO-BABAPULLE (in her capacity as one of the executors of the estate of the late Mary Beatrice Kamala Brito‑Babapulle, deceased)	Defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22, 23 and 24 May 2024
DATE OF JUDGMENT:	31 May 2024
CASE MAY BE CITED AS:	Brito-Babapulle v Brito-Babapulle
MEDIUM NEUTRAL CITATION:	[2024] VSC 281

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ADMINISTRATION AND PROBATE — Application by executor for removal of sibling co‑executor and trustee of mother’s deceased estate — Severe delay in administration of estate — Difficult relationship between siblings — Capacity of co-executor to focus on tasks — Tendency of co-executor to pursue peripheral issues — Prolix and oppressive correspondence — Plaintiff offering, if necessary, to be discharged to ensure smooth completion of administration of estate — Appointment of independent administrator and trustee — Directions to incoming administrator — Administration and Probate Act 1958 s 34(1) — Trustee Act 1958 s 48 — Supreme Court (General Civil Procedure) Rules 2015 r 54.02.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Shepherd	MST Lawyers
For the Defendant	The defendant was self-represented

TABLE OF CONTENTS

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

Issues for determination................................................................................................................... 3

Applicable legal principles.............................................................................................................. 6

Facts...................................................................................................................................................... 7

Uncontroversial background facts............................................................................................. 7
Relevant events overview............................................................................................................ 8
First period: October 2019 to March 2020.................................................................................. 8
Second period: March 2020 to June 2021................................................................................... 9
Third period: June 2021 to June 2022....................................................................................... 14
Fourth period: June 2022 to May 2024..................................................................................... 21

Consideration of the key delay issues raised by the parties................................................... 25

(1) Mr Brito’s query about whereabouts of proceeds from father’s estate......................... 25
(2) Investigation of parents’ financial affairs and whereabouts of records........................ 26
(3) Ms Brito’s claims for reimbursement................................................................................. 28
(4) Ms Brito’s claims for compensation for caring for the deceased.................................... 29
(5) Dealings with Mr Porritt...................................................................................................... 30
(6) Establishment of estate bank account................................................................................. 32
(7) Statement of estate liabilities............................................................................................... 33
(8) Interment of deceased’s remains in Sri Lanka.................................................................. 34
(9) Deceased’s jewellery............................................................................................................. 34
(10) Other questions posed by Ms Brito.................................................................................. 37
(11) Failure of mediation arrangements.................................................................................. 38
(12) Delay in making interim distribution to beneficiaries................................................... 38
(13) Dealings with the first accounting firm and preparation of tax return....................... 38
(14) Accusations against lawyers.............................................................................................. 39

Should the defendant be removed from her office as executor and trustee?....................... 39

Should the plaintiff’s agreement to be discharged from…

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: [2024] VSC 281
Decision Date: 31 May 2024

CaseChat Overview and Summary

In the Supreme Court of Victoria, Brito-Babapulle sought the removal of his sister, the defendant, as co-executor and trustee of their mother's deceased estate. The application was driven by significant delays in the estate's administration, compounded by a challenging relationship between the siblings. The plaintiff argued that his sister's capacity to concentrate on essential tasks was impaired, and she had a tendency to focus on peripheral issues. Furthermore, her extensive and oppressive correspondence had exacerbated the situation. The plaintiff was willing to be discharged from his role if it would facilitate a smoother administration of the estate.

The court had to determine whether the plaintiff's application met the criteria for the removal of a co-executor and trustee under the relevant statutes. Specifically, the court considered whether the defendant's conduct justified her removal as per the Administration and Probate Act 1958 section 34(1) and the Trustee Act 1958 section 48. The court also needed to decide if appointing an independent administrator and trustee was in the best interests of the estate and its beneficiaries.

The court found that the plaintiff's application was well-founded. It noted the significant delays, the detrimental impact on the estate's administration, and the difficult interpersonal dynamics between the siblings. The court concluded that the defendant's conduct warranted her removal as co-executor and trustee. The plaintiff's willingness to be discharged was also considered a mitigating factor. The court appointed an independent administrator and trustee, providing specific directions to ensure the efficient and effective completion of the estate's administration. The court's decision was guided by the need to protect the interests of the estate and its beneficiaries, as well as to address the ongoing difficulties between the siblings.

Orders