Dalziel v Budulica

Case [2025] QSC 171

SUPREME COURT OF QUEENSLAND

CITATION:

Dalziel v Budulica [2025] QSC 171

PARTIES:

KENT WILLIAM DALZIEL AS ADMINISTRATOR OF THE ESTATE OF KATICA BUDULICA (ALSO KNOWN AS KAJA BUDULICA AND KATA BUDULICA), DECEASED

Applicant

v

STANISLAV BUDULICA (ALSO KNOWN AS STAN BUDULICA)

First respondent

SLAVICA BUDULICA (ALSO KNOWN AS SYLVIA BUDULICA)

Second respondent

FILE NO:

BS 14374 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 March 2025 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2025

JUDGE:

Hindman J

ORDER:

1. Pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in distributing the estate of Kadica Budulica, also known as Kaja Budulica and Kata Budulica (the ‘Deceased’) by bringing into hotchpot the following:

(a)   the debt owing by the first respondent to the Deceased’s estate in the sum of $2,524.65;

(b)  the debt owing by the second respondent to the Deceased’s estate in the sum of $237,514.95.

2. Save for the amount referred to above in paragraph 1(a), pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in accepting, and not undertaking any further investigations into:

(a)   all expenses paid or incurred by the first respondent using estate funds, except for all expenses relating to the estate’s Toyota vehicle bearing registration number 423LJE from 8 December 2014 onwards;

(b)  any other conduct or transactions of and by the first respondent, including:

(i)    commencing a proceeding against the first respondent to recover rent from Units 2 and 4 of 92 Stuart Street, Bulimba;

(ii)  commencing a proceeding against the first respondent to recover any other expenses from the first respondent on behalf of the estate;

during the first respondent’s appointment as executor of the Deceased’s estate.

3. Pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in finalising the administration of the estate without retaining a forensic accountant to investigate the first respondent’s conduct as executor;

4. Pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in undertaking the final distributions from the estate, after:

(a)   taking into account the hotchpot amounts referred to in paragraph 1; and

(b)  any tax, legal and accounting fees required to finalise the administration of the estate.

5.   The applicant’s costs of this application be paid from the estate of the Deceased on the indemnity basis.

6.   The second respondent bear her own costs of the proceeding.

CATCHWORDS:

SUCCESSION – ADMINISTRATION OF ESTATE – OTHER MATTERS – where the administrator of an estate seeks judicial advice that he is justified to bring debts owed by the respondents into hotchpot – where the administrator seeks judicial advice that he is justified in not undertaking any further investigations – where the administrator seeks judicial advice that he is justified in finalising the administration of the estate without retaining a forensic accountant – where the administrator seeks judicial advice that he is justified in undertaking the final distributions from the…

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AGLC
Dalziel v Budulica [2025] QSC 171
Case
[2025] QSC 171
Decision Date

CaseChat Overview and Summary

In the matter of Dalziel v Budulica, the applicant, Sylvia Dalziel, sought judicial advice concerning the administration of the estate of Kadica Budulica. The deceased, Kadica, passed away on 8 December 2013, and the case involves the administration of her estate by the applicant, Sylvia Dalziel, and disputes among the beneficiaries, particularly between the first and second respondents, who are siblings and children of the deceased. The first respondent, Stan, was the initial executor of the estate, but his role was terminated by the court in 2023 due to concerns about his conduct. The applicant, Sylvia, sought advice on several matters including whether she could bring certain debts into hotchpot, cease further investigations into the first respondent's conduct, refrain from retaining a forensic accountant, and proceed with the final distributions from the estate.

The legal issues before the court involved determining whether the applicant was justified in taking specific actions concerning the estate administration, particularly in light of the contentious history between the parties and the significant legal costs already incurred. The court had to balance the interests of the estate against the necessity of resolving ongoing disputes and the potential for additional expenses.

The court concluded that the applicant was justified in making final distributions from the estate, considering the hotchpot amounts and any necessary fees to finalise the administration. However, the court refused to advise that the applicant was justified in bringing certain car expenses into hotchpot. Regarding costs, the court ruled that the administrator's costs should be borne by the estate, but did not find sufficient grounds to allocate those costs to either of the respondents. Additionally, the court ordered that the second respondent, Sylvia, bear her own costs of the proceeding.

The court's decision highlights the importance of considering the best interests of the estate, the history of disputes, and the potential for further legal costs in determining the appropriate course of action in estate administration. The court provided detailed reasoning on why it found certain actions reasonable while others were not, underscoring the need for a balanced approach in such complex cases.

Orders

Orders of the court

1. Pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in distributing the estate of Kadica Budulica, also known as Kaja Budulica and Kata Budulica (the ‘Deceased’) by bringing into hotchpot the following:

(a) the debt owing by the first respondent to the Deceased’s estate in the sum of $2,524.65;

(b) the debt owing by the second respondent to the Deceased’s estate in the sum of $237,514.95.

2. Save for the amount referred to above in paragraph 1(a), pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in accepting, and not undertaking any further investigations into:

(a) all expenses paid or incurred by the first respondent using estate funds, except for all expenses relating to the estate’s Toyota vehicle bearing registration number 423LJE from 8 December 2014 onwards;

(b) any other conduct or transactions of and by the first respondent, including:

(i) commencing a proceeding against the first respondent to recover rent from Units 2 and 4 of 92 Stuart Street, Bulimba;

(ii) commencing a proceeding against the first respondent to recover any other expenses from the first respondent on behalf of the estate;

during the first respondent’s appointment as executor of the Deceased’s estate.

3. Pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in finalising the administration of the estate without retaining a forensic accountant to investigate the first respondent’s conduct as executor;

4. Pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in undertaking the final distributions from the estate, after:

(a) taking into account the hotchpot amounts referred to in paragraph 1; and

(b) any tax, legal and accounting fees required to finalise the administration of the estate.

5. The applicant’s costs of this application be paid from the estate of the Deceased on the indemnity basis.

6. The second respondent bear her own costs of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

But otherwise, on the face of it, it is very difficult for me to see that there would be any benefit to the estate in the administrator taking any of those further steps that Sylvia would like him to take. As I emphasised at the beginning, ultimately my primary consideration, in giving the judicial advice, is what is in the best interests of the estate, and I cannot see that the incursion of further expenses or any further delay in the finalisation of this estate would, in fact, be in the interests of the estate. Conclusion It is appropriate that I give advice that the applicant will be justified in making final distributions from the estate, taking into account the matters that I have mentioned, including the hotchpot amounts that I have dealt with and, of course, any tax, legal or accounting fees required to finalise the administration of the estate. So, in terms of the draft order, it will just require a carve out in relation to those car expenses, for which I am not prepared to give the advice sought.Costs I indicated at the beginning of my reasons that a cost issue would arise and that there would be two parts to it. There is no issue that the administrator is entitled to his costs of the proceeding on the indemnity basis from the estate. The two issues that arise for consideration and determination are whether those costs of the administrator, because of the conduct of either of the respondents, ought to be borne by either of those beneficiaries, other than just by the estate, which will result in them sharing those costs 50/50. That is the first issue. The second issue concerns the fact that Sylvia has presented invoices to the court relating to the costs that she had incurred in relation to this proceeding. It looks like, on the face of the material that is now exhibit 7, Sylvia, in respect of this proceeding, has incurred legal costs in the amount of about $8,745, and there is some short description of what work that relates to. It basically appears to have been incurred over a very short period of time, from about the 24th of February through to only the 28th of February 2025. That corresponds with what I mentioned about Sylvia having legal representation at the review that I heard at the end of February. Sylvia seeks those costs to be paid by Stan. I summarise what the position of the parties is in relation to all of those costs. In respect of the administrator’s costs, the submission made by the administrator is neutral. They are, of course, only interested in recovering the amounts from the estate. Beyond that, it is not their issue for concern. Stan makes a submission that those costs ought to be borne solely by Sylvia on the basis that this is really just a re-agitation of issues that have already been resolved and are costs that are otherwise unnecessarily incurred as a consequence of Sylvia’s actions. Sylvia, on the other hand, says that the administrator’s costs should be wholly borne by Stan on the basis that she sees his conduct as the cause of all of the disputes that have come before the court, and that would be the only fair outcome.

Ratio Decidendi

Legal Principle Established

Accordingly, I note that if judicial advice is given in this case, it will not determine final rights between the parties. It is nothing more than advice to the administrator that the court considers that if the administrator proceeds in a particular way or not proceeds in a particular way, that is a reasonable decision in the circumstances known to the administrator that have been disclosed to the court, upon which the court gives the advice.Pertinent considerations in this case The primary consideration in the giving of judicial advice is what is in the best interests of the estate. There are some overriding considerations that arise in that respect in this particular case that I will emphasise. The first is the date of death of the deceased, the 8th of December 2013, now over 11 years ago. There is the fact, as I have summarised, that there have been many disputes between the respondents to this proceeding. There is the fact that legal costs have significantly adversely eroded the available estate to be distributed to the beneficiaries. Next, there is the fact that Sylvia has mostly been unsuccessful in the litigation to date, and that is reflected in the various costs orders that have been made against her in various proceedings. Next, the estate has not been able to be finalised whilst all of these disputes have been ongoing. I note also that the court did see fit to remove Stan as the executor in 2023. I note that the administrator has carried out extensive independent accounting in relation to the estate, and that the administrator has sought the views of the beneficiaries extensively in relation to alleged issues with the accounting and the alleged misconduct of Stan in his executorship of the estate. I note that where views about those matters conflict between the beneficiaries, the administrator does not have the powers of a Judge to conduct a trial and sometimes in light of conflicting submissions, the administrator will simply have to do the best he can based on the information available. A proper consideration in that respect will include whether further investigations or litigation is anticipated to be commercially viable. I note that the administrator in this case seems to have performed that role as I have described it. That can be seen particularly in court document 23, which is an affidavit of Mr Dalziel affirmed on the 6th of February 2025, at exhibit 1, where the executor has compiled a table of the matters he considered or perceived to still be contentious between the parties. Having sought the beneficiaries’ position on them, he expresses what each of their positions are on the competing item, identifies what evidence the beneficiaries have put forward in support of their position and then identifies what he thinks is the proper position and the evidence particularly upon which he relies. So he has done, it appears to me, a thorough job at trying to fairly resolve issues in dispute between the beneficiaries, noting that even at that stage, that list of issues ran to over a hundred and thirty items.