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Daicos v Daicos

Daicos v Daicos

Case [2018] VSC 18 1 February 2018

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Succession Law

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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…

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 Daicos v Daicos

Details

AGLC: Daicos v Daicos [2018] VSC 18
Case: [2018] VSC 18
Decision Date: 1 February 2018

CaseChat Overview and Summary

In Daicos v Daicos, the applicant, a contingent beneficiary, sought declarations concerning the estate of the deceased. The respondent, the executor of the estate, applied for the plaintiff’s application to be summarily dismissed, asserting that the plaintiff lacked standing to apply for the declarations. The matter was heard in the Supreme Court of Victoria. The court was required to determine whether the plaintiff, as a contingent beneficiary, had standing to apply for declarations under the relevant rule in the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

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