Emmanuel George Lambrou v Christos Lambrou and Melissa Joanne Lambrou

[2021] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0032

EMMANUEL GEORGE LAMBROU	Applicant
v
CHRISTOS LAMBROU	First Respondent
MELISSA JOANNE LAMBROU	Second Respondent

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JUDGES:	BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 March 2021
DATE OF JUDGMENT:	30 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 81
JUDGMENT APPEALED FROM:	Lambrou v Lambrou (Unreported, Supreme Court of Victoria, Keogh J, 17 March 2021)

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PRACTICE AND PROCEDURE – Warrant of possession – Application for stay of warrant refused by primary judge – Application for leave to appeal primary judge’s refusal of stay – No basis for staying execution of warrant – Proposed ground of appeal not reasonably arguable – No basis for setting aside order upon which warrant is based – Res judicata – application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the First Respondent	Mr J L Smith	Davies Collison Cave Law
For the Second Respondent	No appearance

BEACH JA
KAYE JA:

1. On 24 February 2017, Despina Lambrou, by her administrator, State Trustees Limited, commenced a proceeding against one of her sons, Emmanuel (the applicant in this Court).  In that proceeding, Mrs Lambrou sought to set aside a subdivision of her home — which subdivision was alleged to have been done at the initiative of Emmanuel.  She also sought relief in relation to what was alleged to be the misappropriation of proceeds of a sale by Emmanuel, then acting in his capacity as her administrator.  Additionally, she sought an order setting aside a transfer of lot 2 of the subdivision, which had been made to Emmanuel and his then wife (the second respondent in this Court), and which she alleged had been made in circumstances that were unconscionable and/or the product of undue influence.

1. Following the death of Mrs Lambrou in November 2017, her other son, Christos (the first respondent in this Court), obtained a grant of administration of her estate, and assumed the conduct of the proceeding she had commenced.

1. On 28 May 2018, Christos obtained summary judgment in relation to part of the proceeding, and a counterclaim previously filed by Emmanuel was struck out.[1]

   [1]See Lambrou v Lambrou [2018] VSC 141; and Lambrou v Lambrou (No 2) [2018] VSC 244.

1. On 2 August 2018, the remaining disputes between the parties were resolved at a mediation.  The terms of settlement required the applicant and his former wife to pay the sum of $552,200 to the estate (‘the settlement sum’).  In the event of default, Christos was entitled to apply for judgment on terms which included the giving of vacant possession of the property to Christos for the purposes of its sale, with the proceeds of the sale then being applied to pay the settlement sum or any outstanding balance.

1. The terms of settlement contained mutual releases.  For their part, Emmanuel and his former wife released Christos, personally and in his representative capacity, from all claims pursuant to part IV of the Administration and Probate Act 1958 (‘the Act’). Similarly, Christos gave a release for any claim he might have under part IV of the Act.

1. On 27 August 2018, the original proceeding was dismissed, with liberty reserved to Christos to apply for judgment in the event of default as contemplated by the terms of settlement.

1. Emmanuel and his former wife subsequently defaulted on the terms of settlement.

1. On 3 June 2019, Christos filed a summons for judgment in accordance with the default provisions contained in the terms of settlement.  That application came on for hearing on 21 June 2019 before McMillan J.  On that date, her Honour made various orders, including an order that Emmanuel and his former wife deliver up to Christos vacant possession of the property for the purpose of sale. 

1. Emmanuel and his former wife did not leave the property or comply with the orders of McMillan J. 

1. On 5 September 2019, Emmanuel filed an application for leave to appeal the orders of McMillan J, together with an application for an extension of time (the application for leave to appeal being out of time).

1. On 29 October 2019 Irving JR refused Emmanuel’s application for an extension of time, and ordered him to pay Christos’ costs of the application on a standard basis.

1. On 21 January 2020, Christos obtained a warrant of possession, enabling the sheriff to enter the property and cause possession of it to be taken for the purposes of sale in accordance with the orders of McMillan J.  The warrant was provided to the sheriff in late January 2020 for the purposes of execution, and the execution date was set for 3 April 2020.

1. The sheriff attended the property on 12 March 2020 and served a notice to vacate on Emmanuel.  By this time, Emmanuel had separated from his wife and she no longer resided at the property.  As a result of the COVID-19 pandemic, the sheriff’s office, however, deferred execution of the warrant, and the warrant was not executed in 2020.  Emmanuel continued to reside at the property.

1. On 16 December 2020, Christos obtained orders extending the time for execution of the warrant for a period of one year.

1. The sheriff has now resumed the execution of warrants.  A final notice to vacate the premises was given to Emmanuel, with an execution date of 19 March 2021.

1. On 15 March 2021, Emmanuel filed a summons seeking, amongst other orders, an order for the setting aside of the warrant, an order for the staying of the warrant and an order setting aside the terms of settlement.

1. In support of his application, Emmanuel filed an affidavit in which he asserted that he was coerced into signing the terms of settlement. Additionally, he contended that the release of the estate from any claim by him under part IV of the Act was invalid and contrary to the provisions and purposes of the Act.

1. Emmanuel’s summons came on for hearing before Keogh J on 17 March 2021.  After hearing argument, Keogh J dismissed Emmanuel’s summons and ordered him to pay indemnity costs.[2] Emmanuel now seeks leave to appeal from the order of Keogh J. He also seeks an order that Keogh J’s order be stayed until his application for leave to appeal is decided by this Court. His single ground of appeal is that Keogh J ‘incorrectly interpreted part IV of the Act’.

   [2]Lambrou v Lambrou (Unreported, Supreme Court of Victoria, Keogh J, 17 March 2021).

1. Having regard to the limited ground upon which Emmanuel seeks to challenge the orders of Keogh J, it is not necessary to set out his Honour’s conclusions in relation to the arguments made by Emmanuel other than those relating to the alleged inability of a party to settle proceedings under part IV of the Act. In respect of that contention, Keogh J said:

There is nothing in the Act to which I was taken in argument that supports a construction that parties cannot freely resolve differences about deceased estates including by contracting out of entitlements under part IV of the Act on agreed terms. Terms of settlement are very frequently reached in such matters in proceedings in this Court.

1. Having considered the material afresh for ourselves, we see no error in his Honour’s conclusion. With respect, his Honour was plainly correct when he rejected Emmanuel’s contentions that the provisions or purpose of the Act somehow prevented parties not under any disability from entering into terms of settlement which provided mutual releases for any claims made under the Act. For completeness, we should interpolate that no part IV claims have been made under the Act by any of the parties to this proceeding, and that any such claims are now statute barred.[3]

   [3]See s 99 of the Act.

1. Additionally, we would observe that even if it were not possible for parties not under disability to provide releases with respect to claims under part IV of the Act (and the releases of those claims provided for in the terms of settlement were set aside), this would have no effect on the terms that required Emmanuel to pay the settlement sum with a sale of the property to occur in default of compliance with that obligation.

1. In any event, as the primary judge observed, the warrant for possession of the property was not based on the terms of settlement.  It was based upon, and enforces paragraph 3 of the orders made by McMillan J on 21 June 2019 (namely, that Emmanuel and his former wife deliver up to Christos vacant possession of the property for the purposes of its sale).  Those orders bind the parties as res judicata.

1. There being no merit in Emmanuel’s application for leave to appeal, it must be refused.  We would also refuse it (and, as a consequence, any application for a stay) on the basis of delay.  The warrant of possession was issued in January 2020.  As a result of the pandemic, the warrant was not executed in 2020, and the applicant had the benefit of being able to remain living in the property.  During that time, he took no step to set aside the terms of settlement or the warrant.  Instead, he chose to wait until the eleventh hour and issued an application for a stay some four days before the sheriff was due to execute the warrant.  In the circumstances, the applicant could not expect any court to grant him the relief he sought at first instance.

1. The application for leave to appeal will be refused.  It follows that there is no basis for this Court to order any stay.

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