Czapp v Cassar and Caldwell - [2015] VSC 111

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2011 03437

BETWEEN

VICTOR CZAPP	Plaintiff
and
ERICA CASSAR AND MARK CALDWELL, in their capacity as Executors and Trustees of the Estate of Gregory Czapp deceased	Defendants

---

JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2015
DATE OF JUDGMENT:	27 March 2015
CASE MAY BE CITED AS:	Czapp v Cassar and Caldwell
MEDIUM NEUTRAL CITATION:	[2015] VSC 111

---

PROBATE – Application to remove executors – Unfitness to act – Delay, lack of information, waste and conflict of interest – Executors removed – Administration and Probate Act 1958, s 34(1)(c) – Monty Financial Services Ltd v Delmo [1995] 1 VR 65; Miller v Cameron (1936) 54 CLR 572; Dimos v Skaftouros (2004) 9 VR 584 applied.

PROBATE – Whether executors improperly incurred costs – Whether executors should be deprived of usual indemnity from estate for their legal costs – No indemnity for improperly incurred costs or plaintiff’s costs – Nolan v Collie (2003) 7 VR 287 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Panna QC	MNG Lawyers
For the Defendants	Mr AG Uren QC with Mr J O’Bryan	Mark Caldwell, Lawyer

TABLE OF CONTENTS

Factual narrative................................................................................................................................. 8

Should the defendants be removed as executors?..................................................................... 17

Who should pay the costs of the 4 March summons and the notice to produce?................ 27

Are the defendants entitled to have their costs, and any costs they are ordered to pay to the plaintiff, paid out of the assets of the estate?............................................................................................... 28

Who should be appointed as administrator?.............................................................................. 30

HIS HONOUR:

Gregory Czapp (‘the deceased’) died on 11 August 2010. He was survived by three children: his son, Victor Czapp (the plaintiff), his daughter Erica Cassar (the first defendant), and his other son, Gregory. From March 1999, the deceased had an impaired cognitive function and his financial affairs were controlled by Ms Cassar under a power of attorney she held on his behalf.

By his will, the deceased appointed Ms Cassar and his solicitor, Mark Caldwell, to be executors of his estate. Mr Caldwell is the second defendant and acts as solicitor for himself and the first defendant in the proceeding. The deceased left a modest estate, comprising mainly real estate which he gave to the trustees of discretionary trusts for his family. His residuary estate, comprised of cash and shares in corporate trustees of various discretionary trusts, which have no value, was left to his three children in equal shares.

The defendants obtained probate of the deceased’s will on 7 January 2011.

Prior to March 1999, the deceased built up a successful business in Victoria and other states, now known as ‘Airport Doors’. Its principal business is the manufacture, sale and installation of roller doors and grills. The business is substantial with an annual turnover of approximately $20 million. The business is conducted by Czapp Pty Ltd as trustee of the Czapp Business Trust, a discretionary trust of…

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.

Keep reading for free

Create a free CaseChat account to read Czapp v Cassar and Caldwell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] VSC 111
Decision Date: 27 March 2015

CaseChat Overview and Summary

The case of Czapp v Cassar and Caldwell involves an application by the plaintiff, Czapp, to remove the executors of an estate, Cassar and Caldwell, on the grounds of unfitness to act. The dispute was heard in the Supreme Court of Victoria. The plaintiff alleged that the executors were unfit to act due to delays in the administration of the estate, a lack of information provided to beneficiaries, waste of estate assets, and conflicts of interest.

The legal issues before the court included whether the executors were unfit to continue in their roles and, if so, whether they had improperly incurred costs for which they should be deprived of their usual indemnity from the estate. The court considered the provisions of the Administration and Probate Act 1958, alongside relevant case law such as Monty Financial Services Ltd v Delmo, Miller v Cameron, and Dimos v Skaftouros. It also examined Nolan v Collie to determine the implications for the executors' entitlement to an indemnity for their legal costs.

The court found that the executors were unfit to act due to the issues raised by the plaintiff. It was determined that the executors had indeed incurred costs improperly and were not entitled to the usual indemnity from the estate for these costs. The court further held that the plaintiff's costs should not be met from the estate. The executors were subsequently removed, and orders were made regarding the administration of the estate and the handling of the executors' costs.

In summary, the court ruled that the executors' unfitness warranted their removal and that they should not receive indemnity for improperly incurred costs or the plaintiff’s costs. This decision was based on the executors' failure to meet the standards required for their role and the specific legal precedents applied.

Orders