Ermanno Giurina v Greater Geelong City Council and Registrar of Titles

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0035

ERMANNO GIURINA	Applicant
v
GREATER GEELONG CITY COUNCIL	First Respondent
REGISTRAR OF TITLES	Second Respondent

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JUDGES:	BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2023
DATE OF JUDGMENT:	7 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 299
JUDGMENT APPEALED FROM:	[2023] VSC 59 (Matthews AsJ)

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REAL PROPERTY – Appeal – Caveats – Application for leave to appeal against orders for removal of caveats – Standing – Whether prima facie case to be tried – Proprietary estoppel – Whether prima facie case that executor disposed of property to himself as beneficiary before administration of estate complete – Whether primary judge erred in considering issues of prima facie case and balance of convenience – Caveator’s proposed appeal having no real prospect of success – Application for leave to appeal refused.

STATUTORY INTERPRETATION – Caveats – Caveat removal – Standing – Whether the words ‘any person who is adversely affected by any such caveat’ in s 90(3) of the Transfer of Land Act 1958 should be read down by reference to s 89A and are limited to persons who have ‘an interest in the land’ or have a ‘power to deal directly with the land’ – Whether judgment creditor who obtains warrant of execution over property is a person affected by caveats on title of property – Words not limited as contended for by applicant.

WORDS AND PHRASES – ‘Any person who is adversely affected by any such caveat’.

Transfer of Land Act 1958, ss 89A and 90(3).

Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to.

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Counsel
Applicant:		In person
First Respondent:		Mr S Woolley
Second Respondent:		No appearance
Solicitors
Applicant:
First Respondent:	Harwood Andrews Lawyers
Second Respondent:	Land Use Victoria Legal

BEACH JA
MCLEISH JA:

Ermanno Giurina is the executor of the late Carolina Nacinovich, who was and has remained the registered proprietor of a property in Elizabeth Street, Geelong West (‘the property’).
In August 2019, Greater Geelong City Council (‘the Council’) made an emergency order under s 102 of the Building Act 1993 concerning the house on the property. Subsequently, Mr Giurina, as the executor of the estate (‘the estate’), engaged in unsuccessful litigation against the Council concerning the order, resulting in two orders for costs being made against him in his capacity as the executor. Each order is the subject of a warrant of seizure and sale against the property issued at the request of the Council (‘the warrants’). After the warrants were issued, Mr Giurina lodged two caveats over the title to the property (‘the caveats’). In response, the Council made an application to the Court, under s 90(3) of the Transfer of Land Act 1958 (‘the TLA’), for the removal of the caveats.
The Council’s application was heard over two days in November 2022 by Matthews AsJ (as her Honour then was) and judgment was given on 22 February 2023.[1] On 9 March 2023, her Honour made orders pursuant to s 90(3) of the TLA directing the removal of the caveats. On 31 March 2023, Mr Giurina filed an application for leave to appeal in this Court on a single proposed ground of appeal:
Her Honour erred at law in concluding that [the Council] had standing to bring the caveat removal application pursuant to s 90(3) of [the TLA] given that it had no interest in the subject land. The proceeding below should therefore have been dismissed.
[1]Greater Geelong City Council v Giurina [2023] VSC 59 (Matthews AsJ) (‘Primary Reasons’).
On 14 April 2023, the applicant sought a stay in this Court of the orders made by her Honour. On 20 June 2023, following a hearing on 13 June 2023, this Court refused that application on the basis that Mr Giurina’s proposed ground of appeal was not reasonably arguable.[2]
[2]Giurina v Greater Geelong City Council [2023] VSCA 148, [17] (Osborn and Kaye JJA) (‘Stay Reasons’).
On 17 August 2023, Mr Giurina filed an application in this Court to amend his proposed grounds of appeal, ‘without prejudice’ to the ground of appeal (ground 1) contained in his application for leave to appeal. By that application, Mr Giurina seeks to add the following proposed grounds of appeal:
2.Her Honour erred at law and on the evidence before her by concluding that [Mr Giurina] did not have a prima facie case [in relation] to the interest claimed in the first caveat and even if she was wrong about that the prima facie case was very weak and consequently the balance of convenience favoured [the Council].
3.Her Honour erred at law and on the evidence before her by concluding that [Mr Giurina] did not have a prima facie case [in relation] to the interest claimed in the second caveat and even if she was wrong about that the prima facie case was very weak and consequently, the balance of convenience favoured [the Council].
4.Her Honour erred at law in concluding that both caveats should be removed instead of maintaining them until the trial where any dispute of the factual issues or the claims which the caveats seek to protect can be determined.
This is the hearing of Mr Giurina’s application for leave to amend his grounds of appeal, his application for leave to appeal and (if leave is granted) the appeal.

Relevant background

By her last will, made in 1995, Ms Nacinovich appointed Mr Giurina as her executor and trustee of the estate. By clause 3 of the will, she bequeathed the property (including all chattels therein) to Mr Giurina ‘for his own use and benefit absolutely’. By clause 4 of the will, she bequeathed the residue of the estate to Mr Giurina on trust for two other beneficiaries. According to an executor’s affidavit sworn by Mr Giurina in August 2002, the residue of the estate largely comprised an amount of some $8,352.45 in an ANZ Bank account. Ms Nacinovich died on 10 February 2002. Notwithstanding that probate was granted on 13 September 2002, she remains the sole registered proprietor of the property.
On 12 August 2019, by its municipal building surveyor, the Council made an emergency order under s 102 of the Building Act 1993 concerning the property. The surveyor refused a request by Mr Giurina to cancel that order (‘the surveyor’s decision’). Shortly thereafter, Mr Giurina appealed the surveyor’s decision to the Building Appeals Board (‘the BAB appeal’). On 6 September 2019, the Building Appeals Board made a determination in favour of Council, dismissing the BAB appeal and affirming the surveyor’s decision (‘the BAB determination’). After the BAB determination, the Council issued a second emergency order in relation to the property.
In his capacity as executor of the estate, Mr Giurina commenced judicial review proceedings against the Council and the Building Appeals Board (‘the judicial review proceeding’). Amongst other things, he sought an order setting aside the Board’s decision, and an order declaring that the second emergency order was null and void.
Mr Giurina was unsuccessful in the judicial review proceeding[3] and a costs order was made against him in his capacity as the executor of the estate. On 17 November 2021, the costs were fixed by the Costs Court in the amount of $46,915 (‘the JRAL costs order’). Mr Giurina, again as executor, then sought leave to appeal to the Court of Appeal against the outcome of the judicial review proceeding. That proceeding was also unsuccessful.[4] On 7 December 2021, the Court of Appeal made a costs order in the sum of $40,000 against Mr Giurina in his capacity as executor (‘the appeal costs order’).[5]
[3]Giurina v Greater Geelong City Council [2021] VSC 103 (Whelan JA).
[4]Giurina v Greater Geelong City Council [2021] VSCA 318 (Kennedy, Walker and Macaulay JJA). See also Giurina v Greater Geelong City Council (No 3) [2022] VSCA 70 (Kennedy JA).
[5]Giurina v Greater Geelong City Council [2021] VSCA 341 (Kennedy, Walker and Macaulay JJA).
On 30 March 2022, at the request of the Council, the warrants were issued. Amongst other things, the warrants authorised execution to be levied by the Sheriff of Victoria (‘the Sheriff’) for the purpose of satisfying the costs orders. Each warrant provided that, for the purposes of s 52(2) of the TLA, the property is affected by the warrant.
On 8 May 2022, Mr Giurina in his capacity as executor issued a summons in the judicial review proceeding seeking orders that the warrants be cancelled or withdrawn (‘the warrants application’).
On 24 May 2022, Matthews AsJ heard and determined the warrants application. Her Honour made declarations that Mr Giurina as executor of the estate is the proprietor of the property; that the property is affected by the JRAL costs order and the appeal costs order; and that for the purposes of s 52(2) of the TLA, the property is affected by the warrants. Her Honour also made orders that the warrants application be dismissed and that Mr Giurina, as executor, pay the Council’s costs of and incidental to that application.
On or about 30 May 2022, in his capacity as the executor of the estate, Mr Giurina issued another proceeding in the Trial Division against the Council. In that proceeding, he claims damages and various other orders and declarations (‘the damages proceeding’). On 4 July 2022, Mr Giurina as executor filed an application in that proceeding seeking an urgent interlocutory injunction to prevent the sale of the property (‘the injunction application’). An amended statement of claim was filed in the damages proceeding on 12 July 2022 which sought to include a claim for orders that the Sheriff be permanently restrained from enforcing the warrants.
On 14 July 2022, John Dixon J dismissed the injunction application and ordered that Mr Giurina, in his capacity as executor of the estate, pay the Council’s costs of that application.[6]
[6]Giurina v Greater Geelong City Council [2022] VSC 396.
To this point in time, in all of the litigation between Mr Giurina and the Council, Mr Giurina conducted matters as the executor of the estate, on the basis that the property formed part of the estate. In the course of doing so, he asserted that the property was part of the estate and that he had no personal interest in it. For example, in an affidavit sworn on 25 August 2019 in support of the BAB application, Mr Giurina said that he was the executor of the estate ‘which is the proprietor’ of the property. Similarly, during the course of the hearing of the warrants application, in submitting that he had no interest in the property, Mr Giurina said:
So even if it could be argued that I am a beneficiary, I still don’t have any sort of proprietary interest, to be able to form the basis of these warrants, and the highest that you can go to is to that I have a right to have the [estate] administered. But that’s more along the lines of a [chose] in action rather than any proprietary interest. So again, there’s no way that on that basis I could have any interest which could form the basis of these two warrants.[7]
[7]Primary Reasons, [24].
On 27 July 2022, Mr Giurina lodged the first of the caveats (‘the first caveat’). In the first caveat, the caveator is named as Ermanno Giurina, the estate or interest claimed is ‘freehold estate’, the grounds of claim are ‘estoppel’ and the prohibition is listed as ‘absolutely’.
On the same day, Mr Giurina sent an email to the Sheriff’s office referring to the warrants and to the property, stating that he had placed an absolute caveat over the property in his capacity other than executor and asserted that this prevents the sale of the property.
On 5 August 2022, Mr Giurina lodged the second of the caveats (‘the second caveat’). In the second caveat, the caveator is named as Ermanno Giurina, the estate or interest claimed is ‘freehold estate’, the prohibition is listed as ‘absolutely’, and the grounds of claim are stated as:
BENEFICIARY/IES UNDER THE WILL OF THE FOLLOWING DECEASED PARTY, WHERE PROBATE HAS BEEN GRANTED AND ALL DEBTS IN THE ESTATE HAVE BEEN PAID.
Parties
LINA NACINOVICH
On 8 August 2022, Mr Giurina sent an email to the Sheriff’s office referring to the warrants and to the property, stating that he had placed a further absolute caveat over the property in his capacity other than executor and asserted that this prevented the sale of the property.

Proposed ground 1: the Council’s standing

Mr Giurina submitted to the associate judge that the Council did not have standing to make the caveat removal application. He submitted that the person adversely affected by a caveat for the purposes of s 90(3) of the TLA must be a person with an interest in the land as referred to in ss 89A(1) and 89A(3); and that the Council, as a mere unsecured judgment creditor, did not have the necessary interest to make the application it made. The judge rejected that submission.[8]
[8]Primary Reasons, [112]–[115].
In refusing the stay application, and in concluding that proposed ground 1 is not reasonably arguable, this Court (Osborn and Kaye JJA) rejected Mr Giurina’s submission that the words ‘any person who is adversely affected by any such caveat’ in s 90(3) of the TLA should be read down by reference to s 89A so as to limit persons who have ‘an interest in the land’. The Court said:
Neither the text, context nor purpose of s 90(3) support the applicant’s construction. In summary:
(a)the plain words of the statutory provision in s 90(3) are not restricted in the manner for which the applicant contends;
(b)effect should be given to the full language adopted in s 90(3) and the difference in that language from the language of s 89A. Unlike s 89A, there is no requirement under s 90(3) that the Court be satisfied that the applicant has an interest in the land;
(c)the construction for which the applicant contends would require the implication of a substantial limitation upon the subsection which is unnecessary to give the subsection effect and for which there is no apparent justification;
(d)the construction contended for would result in the unwarranted restriction of the Court’s remedial jurisdiction with respect to the operation of caveats. This jurisdiction is to be contrasted with the administrative procedure provided for by s 89A;
(e)the construction contended for would result in an absurd outcome, namely that a judgment creditor could never obtain a removal of caveat under s 90(3) in aid of the sale of real property pursuant to a warrant of seizure and sale. This would deprive judgment creditors of a practical summary procedure. In Piroshenko v Grojsman, Warren CJ said:
Section 90(3) of the Act permits any person adversely affected by a caveat lodged under s 89 of the Act to ‘bring proceedings in a court against the caveator for the removal of the caveat’. Section 90(3) empowers a court dealing with such an application to ‘make such order as the court thinks fit’.
Caveats under the Torrens system are treated by the courts as analogous to applications for interlocutory injunctive relief. In so far as their registration is an administrative act, it is when application is made for their removal that the onus falls on the caveator to satisfy the two-stage test used by the court when deciding whether to exercise its discretion to grant interlocutory injunctive relief. This approach has been established law in Australia since the decision of Lord Diplock in Eng Mee Yong v Letchumanan was approved by the Full Court of the Queensland Supreme Court of Appeal in Re Jorss’ Caveat. This two-stage approach requires the caveator to establish that there is a serious question to be tried that they have the estate or interest which they claim in the land in question, and having done so, to establish that the balance of convenience favours the maintenance of the caveat on the Register of Titles until trial. This is still the approach taken by the courts in Victoria when deciding applications under s 90(3) of the Act.[9]
[9]Stay Reasons, [15] (citations omitted).
In concluding that proposed ground 1 was not reasonably arguable, the Court said that none of the authorities to which Mr Giurina made reference in his submissions supported his construction. However, in deference to his argument, the Court dealt briefly with those authorities, explaining why they did not assist.[10]
[10]Ibid [16].
Mr Giurina has now advanced additional authorities and arguments in support of proposed ground 1. We do not propose to burden these reasons by setting any of them out. It is sufficient to say that for the reasons given by Osborn and Kaye JJA in the Stay Reasons, which we adopt as our own, proposed ground 1 is not reasonably arguable and must be rejected. That said, we specifically reject his new submission that, even if his primary submissions are wrong, it is only the Sheriff who has standing to apply to remove the caveats by virtue of the warrants. This standing was said to be based upon the power the Sheriff is given under r 66.15 of the Supreme Court (General Civil Procedure) Rules 2015 to make an application for an order in aid of the enforcement of a warrant of execution. Similarly, we reject (again for the reasons given by Osborn and Kaye JJA) the submission that in order to make an application under s 90(3) of the TLA a person must have ‘power to deal directly with the land’, if that results in a judgment creditor in the position of the Council being unable to make such an application. There is simply no basis for any such limited construction of the section.
While we say nothing about the standing of the Sheriff to make an application to remove a caveat from the title of a property that is the subject of a warrant of seizure and sale, it is sufficient for us to say that Mr Giurina’s new arguments under proposed ground 1 do not impeach the correctness of the associate judge’s conclusion that the Council did not lack the standing necessary to make the caveat removal application.
Proposed ground 1 is rejected.

The amendment application

In his submissions in support of his application for leave to amend his application for leave to appeal to add proposed grounds 2, 3 and 4, Mr Giurina makes the frank admission:
The stay judgment was handed down on 20 June 2023. Consequently it became obvious to me that in order to have any chance of succeeding on appeal I had to add additional grounds to my leave application to cover all the other errors which I submit the judge made in arriving at her decision.
Before saying anything about whether a court would or should, in the proper exercise of its discretion, grant leave to amend to add proposed grounds of appeal out of time, on the basis identified by Mr Giurina, we propose to deal briefly with the merits of his newly advanced grounds.

Proposed ground 2: the first caveat

In proposed ground 2, Mr Giurina contends that the associate judge erred when she concluded that he did not have a prima facie case to the interest claimed in the first caveat; alternatively, that any prima facie case he had was so weak that the balance of convenience favoured the removal of the caveat.

Mr Giurina’s submissions to the associate judge about the first caveat

Mr Giurina submitted to the associate judge that the first caveat was based on proprietary estoppel. In a Janus-like submission, he contended that, in order to establish proprietary estoppel, he had to establish the following elements:
(a)I made some form of representation as executor to myself as specific beneficiary that I as executor have conferred on me as specific beneficiary an interest in the property;
(b)I in my capacity as specific beneficiary believed or expected that I presently have or in the future would acquire an interest in the property;
(c)I as executor knew or intended that I as specific beneficiary would hold that belief or expectation and would act or abstain from acting in reliance on it;
(d)I in my capacity as specific beneficiary acted to my detriment and changed my position in reliance on my expectation or belief; and
(e)the detriment is such that it would be unconscionable for me as executor to depart from my representation.

Before the associate judge, there was no issue that Mr Giurina had correctly identified the elements of proprietary estoppel involving a representor and a separate representee,[11] which he then modified to fit his case of being both the representor and the representee. Unsurprisingly, there was however an issue as to the appropriateness and legitimacy of this unusual exercise.
[11]As to which, see Laird v Vallance [2023] VSCA 138, [51] (Beach and Osborn JJA).
In support of his claim for proprietary estoppel, Mr Giurina relied upon a handwritten note he made in October 2003 which he signed twice (once as executor and once as beneficiary) and expenses paid by him in relation to the property. The note is difficult to read,[12] but appears to provide as follows:
Note 11-10-2003
I assent as Executor to dispose of property at Geelong West … to myself as beneficiary as per [3] of Will of C. Nacinovich — no liabilities that I am aware of – no power of sale anyway — dispose of specific devise of Property only — chase up other matters re funds — Ermanno Giurina — Executor.
I accept assent — agree as beneficiary to pay for outgoings, costs, etc myself privately for Property — not claim anything against Nacinovich Estate — Ermanno Giurina
Beneficiary

Associate judge’s conclusion

[12]An image of the note is reproduced at Primary Reasons [55].

The associate judge found it ‘inherently implausible’ that the assent alleged by Mr Giurina occurred or that, if it did, it had the effect contended for by Mr Giurina.[13] Her Honour said that the existence of the assent and its alleged effect was contradictory to many other statements made by Mr Giurina in affidavits and submissions in the numerous proceedings involving him and/or the estate and the Council.[14] Her Honour said that it seemed to her that Mr Giurina relied on the assent as ‘yet another attempt to avoid payment of the costs orders and to avoid the property being sold to satisfy debts of the estate’.[15] Her Honour described Mr Giurina’s arguments based on estoppel as ‘so circular and illogical’ that she considered it exceedingly unlikely that Mr Giurina would be able to establish the interest claimed in the first caveat.[16] She made the same conclusions in respect of Mr Giurina’s arguments about an alleged implied assent.[17] Ultimately, she found that Mr Giurina does not have a prima facie case in relation to the interest claimed in the first caveat; saying that, even if she was wrong about that, she considered that Mr Giurina’s case was ‘very weak’, and the balance of convenience favoured the Council.[18]

Mr Giurina’s submissions in this Court

[13]Primary Reasons, [137].

[14]Ibid [138].

[15]Ibid [142].

[16]Ibid [143].

[17]Ibid [144].

[18]Ibid [148]–[150].

In this Court, Mr Giurina maintained the submission he made below that, by virtue of a proprietary estoppel, the property belonged to him personally. He submitted that, in a case where the executor and the beneficiary are one and the same person, ‘there may not be a need to draw … fine distinctions’ when considering what needs to be proved in order to establish a proprietary estoppel. He referred to a number of authorities.[19] None of those authorities, however, provided any support for the proposition that Mr Giurina’s interchange with himself in 2003, or any of his conduct following the death of Ms Nacinovich, gave rise to a proprietary estoppel in his favour.
[19]For example, Fenton v Clegg (1854) 9 EX 681; (1854) 156 ER 292; McMahon v McMahon [1979] VR 239; Baker v Williams [2007] QSC 226; and Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1.
Mr Giurina submitted that, once he started paying for the expenses and outgoings connected to the property as a specific beneficiary, a constructive trust came into existence and he as executor held the property on trust for himself as specific beneficiary. We took this to be a submission that the interest he claimed in the first caveat could exist even without the alleged representation he made to himself (and which he then allegedly accepted to his detriment) as set out in the 2003 note.
On the issue of balance of convenience, Mr Giurina submitted that the evidence showed that he has a deep ‘affection and affinity to the property’, proved by the fact that he has ‘fought long and hard in this litigation with [the Council] to keep the property’. He said that, having established that there was a serious question to be tried in relation to the first caveat, authority[20] dictated that the balance of convenience ‘would in the normal way and in the absence of any special circumstances be in favour of leaving the caveat in existence until the claim is concluded’.

Consideration: the first caveat

[20]Including Eng Mee Yon v Letchumanan [1980] AC 331.

Mr Giurina’s claim that he is the freehold owner of the property by virtue of a proprietary estoppel is totally devoid of merit. The associate judge was entirely correct in rejecting it. Even if it could be sensibly suggested that a proprietary estoppel can be founded on a representation made by a person to himself, there is no reason to suggest that equity would require the freehold interest in the property to pass, rather than providing a remedy measured by reference to the total of any amounts paid by Mr Giurina in respect of the property after the alleged representation was made and relied upon. That said, the difficulties identified by the associate judge with Mr Giurina’s proprietary estopped claim are manifest and well justified her Honour’s rejection of it.
Equally, having regard to the background of this proceeding, her Honour was well justified in concluding that the alleged assent was merely another attempt by Mr Giurina to avoid payment of the JRAL costs order and the appeal costs order. In such circumstances, the balance of convenience, on any view, did not favour the maintenance of the first caveat until the hearing of some unspecified trial (about which we will say more below when dealing with proposed ground 4).
Proposed ground 2 must be rejected.

Proposed ground 3: the second caveat

In proposed ground 3, Mr Giurina contends that the associate judge erred when she concluded that he did not have a prima facie case in relation to the interest claimed in the second caveat; alternatively, that any prima facie case he had was so weak that the balance of convenience favoured the removal of that caveat.

Mr Giurina’s submissions to the associate judge about the second caveat

Relying upon a passage in the judgment of Kitto J in Livingston v Commissioner of Stamp Duties (Qld),[21] Mr Giurina submitted to the associate judge that a residuary beneficiary of an unadministered estate has an interest in land arising from a chose in action (being a right to require the estate to be duly administered ‘whereby he can protect those rights which he hopes to become entitled to in the due course of administration’). He submitted that his position, as a specific beneficiary under the will, is even stronger. He went on to submit:
In any event as already discussed above ... in 2003 I assented to the disposition of the property to myself as specific beneficiary under the will.
Since that time there has also been an implied assent because I in my capacity as executor have not performed any executorial acts in relation to the property and all the outgoings in relation to the property such as rates, insurance premiums, mowing, fencing, painting of the exterior of the house and removal of rubbish have been paid by me out of my own pocket in my private capacity as specific beneficiary … .[22]
[21](1960) 107 CLR 411, 449–50 (‘Livingston’).
[22]See [36] and [37] of Mr Giurina’s written submissions dated 10 November 2022.
In relation to the balance of convenience, Mr Giurina contended that ‘there were no debts at the time of the assent so it was appropriate for the property to be disposed to me as per the will’.[23] He went on to say:
The relevant debts have arisen after the equitable title in the property has vested in me ... and the property cannot be used to satisfy those debts as it is no longer part of the estate. … My title to the property relates back to the time of the passing of Mrs Nacinovich … . … [R]egardless who the executor of the property is, that person, like myself, would have no power to sell the property to satisfy any debts.[24]

Associate judge’s conclusion

[23]Ibid [46].

[24]Ibid.

In rejecting Mr Giurina’s submissions relating to the second caveat, the associate judge said:
To the extent that the interest claimed in the Second Caveat relies on the Assent (including the estoppel claim) or the implied assent, then there is no prima facie case to that interest, for the same reasons as set out in respect of the First Caveat. If I was wrong in that respect, then I reiterate that any case founded on the Assent is very weak.
Mr Giurina does not appear to have taken into account a further passage from Livingston v Commissioner of Stamp Duties (Qld), where Kitto J went on to say the following:
But the existence of a beneficial interest is one thing, and the nature of it is another. … the rights of residuary beneficiaries while administration is incomplete stop short of entitling them to any of the assets in specie, or to any of the income in specie, or to any property or any part or share of property into which either the assets or their income may be converted. The beneficiaries are entitled only to receive, eventually, a share of whatever turns out to be left when the administration is complete; and that may not include any of the existing assets or their income, or anything representing either, for conceivably an asset may be sold and its proceeds used up in the process of administration, and the income may be similarly absorbed. Of course the beneficiaries’ rights are rights with respect to, or ‘in’, or ad each specific asset for the time being in the estate; but the important point to notice is that each such asset is liable, in the very working out of those rights themselves, to disappear from the estate. In other words, the nature of the beneficiaries’ interest in the particular assets necessarily accords with the nature of their interests in the residue as a whole.[25]
In any event, both this discussion and that relied upon by Mr Giurina pertains to residuary beneficiaries.
In circumstances where Mr Giurina maintains that the administration of the Estate is not complete and that it appears to be common ground that there are no other assets of the Estate (apart possibly from some vague and unpursued allegation regarding possible fraud upon Ms Nacinovich), I do not accept that the Property is no longer an asset of the Estate and cannot be used for satisfying the debts of the Estate. It cannot be the case that where there are no residuary assets and there are debts, that assets which are the subject of a specific devise are not available to satisfy the liabilities of the Estate. Where the residuary [estate] is insufficient to meet the liabilities of the Estate, the principles of abatement will apply in respect of specific bequests.
I note that the beneficiaries of an unadministered estate lack standing to claim any proprietary interest, including when it comes to lodging a caveat over estate property.[26] Thus Mr Giurina’s submission to the contrary is not accepted.
For similar reasons to those expressed above, I do not accept that there is a prima facie case that the Property is no longer an asset of the Estate. It is inconsistent with much that has gone before this particular proceeding and it smacks of a cynical attempt to impede the Council in enforcing its Costs Orders.
To the extent that it is necessary to consider the balance of convenience, I arrive at the same conclusion for the Second Caveat as I reached for the First Caveat, for the same reasons.[27]

Mr Giurina’s submissions in this Court

[25](1960) 107 CLR 411, 450–1.

[26]See GE Dal Pont, Law of Succession (3^rd edition, LexisNexis, 2021), [10.43] and the cases cited therein.

[27]Primary Reasons, [161]–[167] (citations in original).

In this Court, Mr Giurina essentially repeated and relied upon the submissions he made to the associate judge about the second caveat. He again said that it was ‘clear from the wording of the will’ that Ms Nacinovich intended to give the property to him absolutely and unconditionally, and that the debts of the estate were to be paid only from the rest of her estate. He also submitted that the associate judge misunderstood his submissions in a number of respects. These included that the interest claimed in the second caveat relied on the assent; and the point he sought to make from Livingston that ‘a residuary beneficiary of an unadministered estate has a chose in action’.

Consideration: the second caveat

Mr Giurina’s submission to us that the associate judge misunderstood the submissions he made to her is without substance. Specifically, Mr Giurina criticised the associate judge for saying that, to the extent that the interest claimed in the second caveat relied on the assent or the implied assent, there was no prima facie case in relation to that interest for the reasons her Honour had given with respect to the first caveat.[28] That statement was correct, having regard to Mr Giurina’s own references to the assent in his submissions to the associate judge in relation to the second caveat. Her Honour was saying no more than that, to the extent Mr Giurina relied upon the assent (that is, if at all — and to that extent), he having referred to the assent in his submissions about the second caveat, his submissions were rejected for reasons already given in relation to the first caveat. Otherwise, we see nothing in the Primary Reasons which suggests that her Honour misunderstood Mr Giurina’s submissions about the second caveat.
[28]Ibid [161].
The Privy Council’s decision in Livingston[29] was considered by the High Court in Official Receiver in Bankruptcy v Schultz.[30] The Court said:
Not only does the legal ownership in the property not vest in the named beneficiary at the time of death of the testator, nor does the equitable ownership. That emerges from the Privy Council’s decision in [Livingston]. The reason for this is that, prior to administration of the deceased estate, there is no specific property capable of constituting the subject property of any trust in favour of the beneficiary. It could not be said at that stage what part or parts of the testator’s property would need to be realised for the purposes of administration. So it was held that the beneficiary does not have a proprietary interest in each of the assets which are the subject of the devise or bequest such that he or she can say ‘this is mine’ or ‘this belongs to me’. Although Livingston was concerned with a residuary estate, the observations it contains apply with equal force in the case of a specific bequest or device.[31]
[29]Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] AC 694.
[30](1990) 170 CLR 306 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).
[31]Ibid 312.
In argument, Mr Giurina sought to get around this passage by contending that the bequest to him was no mere specific bequest, but rather one which was both specific and ‘absolute’. In that regard, he relied upon the use of the words ‘for his own use and benefit absolutely’ in clause 3 of the will. The submission is misconceived. While the bequest to Mr Giurina is a specific bequest of the property to him for his use and benefit absolutely, the use of the word ‘absolutely’ does not mean that the property vested in him at the time of death of Ms Nacinovich.
No error has been identified in the associate judge’s conclusion that Mr Giurina had not made out a prima facie case that the property was no longer an asset in the estate. In these circumstances, even if there was a time in the past when the estate (while still not fully administered) had no debts, debts of the estate incurred subsequently were able to be paid from the proceeds of sale of the property if there were no other assets in the estate sufficient to pay them.[32]
[32]Administration and Probate Act 1958, s 39A.
The associate judge did not err in her conclusions with respect to the second caveat. For the reasons given by her Honour, proposed ground 3 must be rejected.

Proposed ground 4: failing to maintain the caveats until disputed factual issues could be determined

In proposed ground 4, Mr Giurina contends that the associate judge erred in concluding that the caveats should be removed, instead of maintaining them ‘until the trial where any dispute of the factual issues or the claims which the caveats seek to protect can be determined’. Mr Giurina described this as a ‘catch-all’ ground which collected together the various errors he alleges were made by the associate judge.
One of a number of difficulties Mr Giurina has with this proposed ground of appeal is that, notwithstanding the fact that the Primary Reasons were delivered more than nine months ago, Mr Giurina has taken no steps to commence a proceeding or articulate a claim which could be heard and determined at the trial which he says should now occur. One might ask, rhetorically, ‘what trial? seeking what relief? and on what basis?’.
On one view of the history of this proceeding, and notwithstanding Mr Giurina’s protestations to the contrary, if the costs orders have been made against him in the wrong capacity because he is entitled to be registered on the title of the property as the freehold owner, all of this has come about through his failure to say at any stage of the various proceedings prior to lodging the caveats, that the property in fact belonged to him personally.
If there was any doubt in Mr Giurina’s mind as to his rights personally or as the executor of the estate, he should have commenced the various proceedings he has taken against the Council in both his personal capacity and his capacity as executor. Contrary to his submissions, the fact that the two emergency notices issued under the Building Act were addressed to ‘Estate of C Nacinovich’ was no impediment to Mr Giurina being frank with the Council and the courts which heard his proceedings and applications about the ownership of the property — a matter peculiarly within his own knowledge given his dealings with himself as both executor and beneficiary.
In any event, the proposed trial which Mr Giurina would now seek to have conducted at some indeterminate time appears to be premised on the proposition that he has no personal liability in respect of the costs orders, in circumstances where it is difficult to see otherwise than that he is in fact personally liable for the costs orders, but with a right of reimbursement from the estate.
Putting that difficulty to one side, another possibility is that Mr Giurina contemplates making an application at the trial he foreshadows, in his personal capacity, to have the warrants set aside. How that could not be an abuse of process of the kind referred to in Anshun,[33] however, is also difficult to see. Mr Giurina has already sought to set aside the warrants in his capacity as executor of the estate. Knowing that he also claimed to be the owner of the property, it was incumbent upon him, at least by the time of the warrants application, to have identified that fact to the Court and the Council. More specifically, it was incumbent upon him to make the warrants application in his personal capacity as well as his capacity as executor. We can see no basis upon which he should be now permitted to make the same application again simply by asserting that he would (in his second application) be acting in a different capacity from when he made his first application.
[33]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun’).

All of that said, Mr Giurina’s ‘catch-all’ ground (proposed ground 4) must fail in any event because there were no errors made by the associate judge, and thus nothing to ‘catch’. Proposed ground 4 must be rejected.

The amendment application: conclusion

For the reasons given above, proposed grounds 2, 3 and 4 are without merit. Being foredoomed to fail, it would be futile to grant Mr Giurina the leave he seeks to amend his application for leave to appeal to add those grounds. Accordingly, leave to amend will be refused.
An additional basis for refusing Mr Giurina leave to amend is the reason he proffered for the application for leave to amend. We take leave to doubt that a court should permit an amendment sought only because, after a hearing, it had become obvious to a party that ‘to have any chance of succeeding’, that party ‘had to add additional grounds’. Plainly, if the application for leave to appeal had been before the court that heard the stay application, in addition to refusing the stay, that court would have refused leave to appeal and no occasion to consider any proposed amendment would have arisen.

Conclusion

Leave to amend the application for leave to appeal to add proposed grounds 2, 3 and 4 will be refused. Leave to appeal will be refused as well.

Post-script: further written submissions

On the evening of Monday, 4 December 2023, and after we had prepared the reasons which are set out above, the applicant sent an email to the Registry, seeking leave to rely on a further written submission.[34] The email attached the further written submission he sought to rely upon, and five authorities. We have read the additional submissions and material which the applicant seeks to rely upon. Nothing in them has caused us to alter the views we have expressed in the reasons above. And nothing in them provides any basis on which we should grant the applicant the leave he seeks. Accordingly, leave to rely upon the further submissions and material is refused.
[34]As to the inappropriateness of sending additional material to the Court after the conclusion of a hearing and when judgment stands reserved, see Frugtniet v Law Institute of Victoria [2012] VSCA 178, [44]–[47] (Warren CJ, Nettle JA and Beach AJA).
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[2023] VSCA 299

7 December 2023