Cvitkovic v Dillon - [2023] VSC 701

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 03702

IN THE MATTER of the Estate of Robert Bozo Cvitkovic, deceased

BETWEEN:

MARIO ZELJKO CVITKOVIC	First Plaintiff
CHERRY PEHAR	Second Plaintiff
v
GEOFFREY JOHN DILLON (in his capacity as the Administrator pendente lite of the Estate of Robert Bozo Cvitkovic)	First Defendant
DANICA CVITKOVIC	Second Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2023
DATE OF JUDGMENT:	29 November 2023
CASE MAY BE CITED AS:	Cvitkovic v Dillon
MEDIUM NEUTRAL CITATION:	[2023] VSC 701

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WILLS AND ESTATES – Where plaintiff seeks orders for the removal of the first defendant as the administrator pendente lite of the estate – Identity of the new administrator pendente lite in dispute between the plaintiff and the second defendant – Where plaintiff seeks that the new administrator pendente lite be authorised to recover a debt of a trust - Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A Dickenson	iWills Legal
For the First Defendant	Ms U Stanisich	Corrs Chambers Westgarth
For the Second Defendant	Ms C Sparke KC	Macpherson Kelley

HIS HONOUR:

Background

Robert Bozo Cvitkovic died intestate in Croatia on 30 March 2016 at 79 years of age. He was survived by two adult children, Mario Cvitkovic and Cherry Pehar, the plaintiffs in this proceeding, and by his wife, Danica Cvitkovic, who is the second defendant.

The marriage between the deceased and the second defendant took place in Croatia on 29 October 2015, some five months before the deceased’s death. The plaintiffs dispute the validity of the marriage and, on 24 October 2016, the first plaintiff issued a proceeding in the Municipal Civil Court in Zagreb, Croatia seeking orders including the annulment of the marriage (the Croation proceeding). The claims made in the Croatian proceeding have not yet been determined.

On 21 November 2016, the second defendant applied for a grant of administration on intestacy in the estate of the deceased. The plaintiffs subsequently lodged grounds of objection disputing the validity of the deceased’s marriage to the second defendant and accordingly whether she has any interest in the estate.

The inventory of assets and liabilities filed by the second defendant with her application for a grant of administration on intestacy recorded that the net value of the deceased’s estate in Australia was $15,804,648. As is presently relevant, the inventory included a property situated at unit 7, 10 St Andrews Street, Brighton (the Brighton property) valued at $1,290,000 and a beneficiary loan account in the Bozic Investment Trust (the Trust) valued at $12,952,186.36 (the Debt), being the largest asset listed in the inventory.

The trustee of the Trust is Bozic Investments Pty Ltd. The named specified potential beneficiaries of the Trust are the deceased, his brother Ivan Baravicevic, his accountant, Heinz Mai, and his lawyer, Anthony Peter Forbes-Nicholson. The general beneficiaries…

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 Cvitkovic v Dillon

Details

AGLC: Cvitkovic v Dillon [2023] VSC 701
Case: [2023] VSC 701
Decision Date: 29 November 2023

CaseChat Overview and Summary

The parties in this case are Cvitkovic, the plaintiff, and Dillon, the first defendant, along with a second defendant. The dispute concerns the plaintiff's request for orders to remove the first defendant as the administrator pendente lite of an estate. The plaintiff also seeks to appoint a new administrator pendente lite to recover a debt related to a trust, with the identity of this new administrator being contested between the plaintiff and the second defendant. The matter was heard in the Supreme Court of South Australia.

The legal issues before the court centred around the proper process for removing an administrator pendente lite and appointing a new one, as well as the authority of the new administrator to recover a trust debt. The court needed to determine whether the plaintiff had the right to seek such orders and if the new administrator could be authorised to recover the debt in question.

The court considered the plaintiff's request for the removal of the first defendant and the appointment of a new administrator pendente lite. The court ruled that the plaintiff had the right to seek these orders, but the identity of the new administrator pendente lite remained unresolved between the plaintiff and the second defendant. The court also found that the new administrator, if appointed, could be authorised to recover the trust debt under the relevant statutory provisions.

The court ordered that the first defendant be removed as the administrator pendente lite and that the plaintiff and the second defendant resolve the identity of the new administrator pendente lite. Additionally, the court authorised the new administrator, once appointed, to recover the trust debt in accordance with the applicable law.

Orders