| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S CI 2017 01057
| SHAMIMA DAICOS | Plaintiff |
| v | |
| PHILLIP DAICOS (who is sued as the Trustee of the Will and Estate of Alexandra Daicos, deceased) | First Defendant |
| GEORGE DAICOS | Second Defendant |
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JUDGE: | IERODIACONOU AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 December 2017 |
DATE OF RULING: | 1 February 2018 |
CASE MAY BE CITED AS: | Daicos v Daicos & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 18 |
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WILLS AND ESTATES – Application by a contingent beneficiary for declarations – Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 54, r 54.02 – Standing – Whether contingent beneficiary has standing under r 54.02.
PRACTICE AND PROCEDURE – Application for summary dismissal by executor – Civil Procedure Act 2010 (Vic) ss 63 and 64 – Asserted ground for summary dismissal that plaintiff has no standing under r 54.02 – Application disallowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Pascoe | Hicks Oakley Chessell Williams Pty Ltd |
| For the First Defendant | Ms C Sparke QC | Whiting Lawyers |
| For the Second Defendant | No appearance | Robinson Gill Lawyers |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 2
The Will................................................................................................................................................ 4
Originating motion............................................................................................................................ 6
Can a contingent beneficiary seek judicial direction under O 54?.......................................... 7
Has Phillip established Shamima has no real prospect of success on the basis she lacks standing?........................................................................................................................................................ 19
Submissions................................................................................................................................. 21
Consideration.............................................................................................................................. 24
Alternatively, is section 64 of the CPA applicable?.................................................................. 27
Conclusion......................................................................................................................................... 28
HER HONOUR:
Introduction
Alexandra Daicos (‘the Deceased’) gave her adult son George Daicos[1] a life interest in a house in Fitzroy (‘the Property’). At the time the Deceased made her Will, George was residing in the house with his wife Shamima and their two daughters. The Deceased’s Will provided that, if certain conditions were met, Shamima would be able to continue residing in the Property after George died. Shamima and George have now been estranged for some years. Shamima seeks judicial advice and directions.
[1]George is also known as ‘Ahmed’. As he is referred to as ‘George’ in the Will, and joined as a second defendant by that name, he shall be referred to as George in this ruling to avoid confusion. If he has legally changed his name, then the proceeding title will need to be amended.
In dispute is whether Shamima can reside at the Property and whether she can compel the estate to pay for its repair. The executor to the estate, Phillip Daicos, opposes the application. He is George’s brother and also a son of the Deceased. Phillip says that Shamima has no standing to bring this proceeding because the words of the Will do not give her a right to compel him to do anything. Accordingly, he seeks that the proceeding be summarily dismissed. The question for determination in this proceeding is whether Phillip’s application should be granted.
Summary
The issues determined in this proceeding are as follows.
1. Can a contingent beneficiary seek judicial…
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- AGLC
- Daicos v Daicos [2018] VSC 18
- Case
- [2018] VSC 18
- Decision Date
CaseChat Overview and Summary
The court considered whether the plaintiff had standing to apply for declarations under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court examined the relevant provisions of the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to determine the criteria for standing. The court found that the plaintiff had standing to apply for declarations under r 54.02, as the plaintiff had an interest in the estate that would be affected by the outcome of the application.
The court disallowed the respondent’s application for summary dismissal, finding that the plaintiff had standing to apply for declarations. The court held that the plaintiff had an interest in the estate that would be affected by the outcome of the application, and that the plaintiff was therefore a proper party to the proceedings. The court further held that the respondent’s application for summary dismissal was not well founded, as the plaintiff had established a prima facie case for the declarations sought.
No final orders were made in this case, as the matter was dismissed on the application for summary dismissal.
Orders
Orders of the court
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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
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