Budulica v Budulica - [2017] QSC 60

SUPREME COURT OF QUEENSLAND

CITATION:

Budulica v Budulica [2017] QSC 60

PARTIES:

SLAVICA BUDULICA (ALSO KNOWN AS SYLVIA BUDULICA)

(applicant)

v
STANISLAV BUDULICA (ALSO KNOWN AS STAN BUDULICA) AS EXECUTOR OF THE ESTATE OF THE LATE KATICA BUDULICA (ALSO KNOWN AS KAJA BUDULICA AND KATA BUDULICA), DECEASED

(respondent)

FILE NO:

BS1740 of 2016

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

21 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30-31 January 2017

JUDGE:

Mullins J

ORDER:

1. The originating application is dismissed.

2. The application for relief in paragraphs 3 to 6 filed on 23 June 2016 in proceeding BS5632 of 2015 is dismissed.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – TITLE AND ESTATE – REMOVAL AND DISCHARGE – GENERALLY – where the respondent was appointed the executor and trustee under his mother’s will – where the whole of the estate was given on trust for the applicant (who was the respondent’s sister) and the respondent in equal shares – where the applicant and the respondent were estranged – where the estate mainly comprised two real properties which were rented – where the respondent collected rents in cash and paid for expenses in cash – where there were delays in the administration of the estate – where the applicant complained about the lack of information and documents provided to her about the estate, the expenses incurred by the respondent, and other matters – where the administration of the estate was significantly advanced – whether the conduct of the respondent justified his removal as the executor and trustee

Succession Act 1981 (Qld), s 6, s 49

Uniform Civil Procedure Rules 1999 (Qld), r 642, r 645

Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293, considered
Budulica v Budulica [2016] QSC 184, related
Re Greif; Kantor v Wilding [2005] VSC 266, considered
Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269, considered

COUNSEL:

The applicant appeared in person

A B Fraser for the respondent

SOLICITORS:

Mitchells Solicitors for the respondent

Ms Slavica Budulica who is the applicant and Mr Stanislav Budulica who is the respondent are the children of Mrs Katica Budulica who died on 8 December 2013. Mrs Budulica’s husband, Mr Stanko Budulica, who was the father of the applicant and the respondent, had died on 1 January 2001. The respondent was appointed the executor and trustee of Mrs Budulica’s last will dated 20 December 2000 and the whole of her estate was given on trust for the applicant and the respondent in equal shares. Probate of the deceased’s last will was granted to the respondent on 25 August 2014.
By originating application filed on 18 February 2016, the applicant seeks the removal of the respondent as the executor and trustee of Mrs Budulica’s will pursuant to s 6 of the Succession Act 1981 (Qld) (the Act) and/or r 642 of the Uniform Civil Procedure Rules 1999 (Qld) and ancillary relief in relation to the appointment of a substitute administrator and trustee and…

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 Budulica v Budulica

Details

AGLC: Budulica v Budulica [2017] QSC 60
Case: [2017] QSC 60
Decision Date: 21 April 2017

CaseChat Overview and Summary

The case of Budulica v Budulica involved a dispute between siblings over the administration of their late mother's estate. The respondent, appointed as both the executor and trustee under their mother's will, was accused by the applicant, his estranged sister, of mismanaging the estate. The estate primarily consisted of two rental properties. The applicant sought the removal of the respondent as executor and trustee, citing issues such as the lack of information provided about the estate, concerns over the respondent's handling of estate expenses, and delays in the administration process. The applicant argued that the respondent's conduct justified his removal.

The court had to determine whether the respondent's actions warranted his removal as executor and trustee. This involved examining the respondent's handling of the estate, particularly his management of the rental properties and the payment of expenses in cash. The court also had to consider the estranged relationship between the siblings and the respondent's offer to the applicant to choose one of the properties. The applicant's concerns about the Jamieson Street property's ownership were noted but deemed not suitable for decision in the context of the removal application. The court acknowledged the advanced state of the estate administration and the respondent's efforts to manage the properties and expenses.

The court found that despite some issues with the respondent's administration, including the handling of the Jamieson Street property and delays, the overall conduct did not justify his removal as executor and trustee. The court emphasised that the applicant could pursue other legal avenues to address specific concerns, such as the ownership of the Jamieson Street property. The estranged relationship between the siblings and the advanced state of the estate administration further supported the decision against removal. Consequently, the court dismissed both the originating and relief applications.

The court's final orders dismissed the originating application and the application for relief, affirming the respondent's position as executor and trustee of the estate. This decision underscored the need for a careful balance between the rights of beneficiaries and the responsibilities of executors, particularly in complex family dynamics.

Orders

Orders of the court

1. The originating application is dismissed.

2. The application for relief in paragraphs 3 to 6 filed on 23 June 2016 in proceeding BS5632 of 2015 is dismissed.

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

Although there was some evidence adduced at the hearing in relation to the purchase and ownership of the Jamieson Street property and how the respondent and his parents dealt with the income and expenses from that property over the years which did not conform with the interests reflected by the registered title, the issue about the ownership of that property could not properly be decided on the application to remove the respondent as executor and trustee. The respondent is adamant that it was their father’s intention that he and his father owned the property as joint tenants. Mr Fraser of counsel on behalf of the respondent submitted that, if the applicant were advised to pursue the ownership of the Jamieson Street property as an estate asset, she could apply to the court for leave pursuant to s 49(2) of the Act to seek a declaration on behalf of the estate that the respondent holds the Jamieson Street property on trust for the estate to the extent that the evidence relied on by the applicant supports the estate’s interest in that property. The administration of the estate The applicant and the respondent are estranged. On 21 March 2014 the applicant obtained a temporary protection order against the respondent. On the return date of the application for a protection order, the respondent consented, without admissions, to the making of a protection order against him. The order was made for two years commencing on 2 April 2014. The respondent was ordered to be of good behaviour towards the applicant and not commit domestic violence against her and was prohibited from approaching to within 100 metres of the applicant or her usual place of residence. The respondent was also prohibited from contacting or attempting to contact or asking someone else to contact the applicant, except by and through a legal representative acting for the respondent in any pending litigation or matters associated with the estate of Mrs Budulica. There were also orders prohibiting the respondent from using the internet or any communication device or telephone to communicate with the applicant. The respondent continued managing the rented properties of Mrs Budulica at Stuart Street and Barton Road in the same manner in which his mother had before she died. This included collecting the rents from the tenants in cash and then using the cash to pay expenses related to the properties and the estate. The respondent has advanced funds to the estate to cover expenses not met by the income of the estate. The respondent engaged solicitors to act on his behalf to deal with the correspondence from the applicant’s solicitors that commenced on 28 March 2014. An offer was made by the respondent to the applicant in the respondent’s solicitors’ letter of 4 April 2014 that she choose one of the real properties, so that they could be transferred in specie to the applicant and the respondent respectively. It took the applicant through her solicitors five months to respond to this offer. Although in September 2014 the applicant was prepared to take the transfer of the Barton Road property, that did not proceed, because of the applicant’s concern about capital gains tax implications of such a transfer. The solicitors for the respondent also foreshadowed in their letter of 22 October 2014 to the applicant’s solicitors that the respondent had been unable to locate the title deeds for both properties and that an application may need to be made to the Titles Office to dispense with production of them. (The title searches showed that certificates of title had been issued in respect of both properties.)

CITATION:	Budulica v Budulica [2017] QSC 60
PARTIES:	SLAVICA BUDULICA (ALSO KNOWN AS SYLVIA BUDULICA) (applicant) v STANISLAV BUDULICA (ALSO KNOWN AS STAN BUDULICA) AS EXECUTOR OF THE ESTATE OF THE LATE KATICA BUDULICA (ALSO KNOWN AS KAJA BUDULICA AND KATA BUDULICA), DECEASED (respondent)
FILE NO:	BS1740 of 2016
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	21 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	30-31 January 2017
JUDGE:	Mullins J
ORDER:	1. The originating application is dismissed. 2. The application for relief in paragraphs 3 to 6 filed on 23 June 2016 in proceeding BS5632 of 2015 is dismissed.
CATCHWORDS:	SUCCESSION – PERSONAL REPRESENTATIVES – TITLE AND ESTATE – REMOVAL AND DISCHARGE – GENERALLY – where the respondent was appointed the executor and trustee under his mother’s will – where the whole of the estate was given on trust for the applicant (who was the respondent’s sister) and the respondent in equal shares – where the applicant and the respondent were estranged – where the estate mainly comprised two real properties which were rented – where the respondent collected rents in cash and paid for expenses in cash – where there were delays in the administration of the estate – where the applicant complained about the lack of information and documents provided to her about the estate, the expenses incurred by the respondent, and other matters – where the administration of the estate was significantly advanced – whether the conduct of the respondent justified his removal as the executor and trustee Succession Act 1981 (Qld), s 6, s 49 Uniform Civil Procedure Rules 1999 (Qld), r 642, r 645 Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293, considered Budulica v Budulica [2016] QSC 184, related Re Greif; Kantor v Wilding [2005] VSC 266, considered Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269, considered
COUNSEL:	The applicant appeared in person A B Fraser for the respondent
SOLICITORS:	Mitchells Solicitors for the respondent