JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2024
DATE OF JUDGMENT:	31 July 2024
CASE MAY BE CITED AS:	Cicvaric v Blazevic
MEDIUM NEUTRAL CITATION:	[2024] VSC 450

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ADMINISTRATION AND PROBATE — Application to remove executor — Administration and Probate Act 1958, s 34 — Trustee Act 1958, s 48 – Whether executor unfit to remain in office – Whether executor entitled to pay her legal costs incurred in resisting removal application from the estate in advance of the determination of that application and the making of an order that she be indemnified from the estate – Application for orders for an account under Order 52 of the Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Baum of counsel	Sinisgalli Foster Legal
For the Defendant	Mr T Fleming of counsel	Stern Legal

TABLE OF CONTENTS

Background

Remedy sought in the proceeding

The course of the administration prior to the commencement of the proceeding

The defendant’s first attempt to sell the Vermont property in late 2022
Damage to the Vermont property and the cost of repairs
The request to distribute the estate property in specie
The investigation of the Croatian assets

Steps taken in the administration subsequent to the commencement of the proceeding

The defendant’s further attempt to sell the Vermont property

Should the defendant be removed as executor?

Powers of removal
Ground One – Failure to transfer the Vermont property promptly following the November 2022 Request
Ground Two – The defendant’s approach to the beneficiaries
Ground Three – Unreasonable delay in the whole administration
Ground Four – Unreasonable pursuit of the investigations of overseas assets
Ground Five – Excessive costs incurred in the administration of the estate
Costs of the first attempted sale of the Vermont property
Costs of the deed of family arrangement negotiations
Costs of the further attempted sale of the Vermont property
Payment of costs of the removal application prior to the determination of the proceeding

Ground Six – Failure to insure the Vermont property
Ground Seven – The defendant is a qualified lawyer and previously acted in respect of wills and estates
Conclusion on the issue of removal

Costs of the proceeding

Repayment of costs improperly incurred and charged to the estate

The plaintiff’s application for orders for an account under Order 52 of the Rules

Disposition

HER HONOUR:

The plaintiff seeks orders for the removal of the defendant as executor and trustee of the estate of 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 Cicvaric v Blazevic

Details

AGLC: Cicvaric v Blazevic [2024] VSC 450
Case: [2024] VSC 450
Decision Date: 31 July 2024

CaseChat Overview and Summary

Cicvaric v Blazevic is a case where the applicant, Cicvaric, sought to remove Blazevic as the executor of an estate. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether Blazevic was unfit to remain as the executor of the estate, pursuant to section 34 of the Administration and Probate Act 1958, and whether Blazevic was entitled to have her legal costs paid by the estate in advance of the determination of the removal application and the making of an order that she be indemnified from the estate. Additionally, the court was asked to consider whether Blazevic was entitled to an account under Order 52 of the Supreme Court (General Civil Procedure) Rules 2015.

The court considered the statutory provisions relevant to the removal of an executor and the circumstances in which an executor may be deemed unfit. The court noted that the onus of proof in such matters rested with the applicant and that the court must be satisfied on the balance of probabilities that the executor was unfit to continue in office. The court also considered the Trustee Act 1958, s 48, which allows for the payment of costs from the estate in certain circumstances. The court found that Blazevic was not entitled to have her legal costs paid by the estate in advance of the determination of the removal application and that she was not entitled to an account under Order 52 of the Supreme Court (General Civil Procedure) Rules 2015. The court ultimately found that Blazevic was fit to remain as the executor of the estate and dismissed the application.

The court dismissed the application to remove Blazevic as the executor of the estate and ordered that Cicvaric pay Blazevic's costs of the application. The court also found that Blazevic was not entitled to have her legal costs paid by the estate in advance of the determination of the removal application and that she was not entitled to an account under Order 52 of the Supreme Court (General Civil Procedure) Rules 2015. The orders of the court were that the application to remove Blazevic as the executor of the estate was dismissed, that Cicvaric pay Blazevic's costs of the application, and that Blazevic was not entitled to an account under Order 52 of the Supreme Court (General Civil Procedure) Rules 2015.

Orders