Legal Research
Cases
Facek v Gargano

Facek v Gargano

Case [2019] VSC 31 4 February 2019

Costs

Limitation Periods

Admissibility of Evidence

Succession Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2014 03671

IN THE MATTER of section 28 and 34 of the Administration and Probate Act 1958

-and-

IN THE MATTER of sections 41, 45, 48 and 51 of the Trustee Act 1958

-and-

IN THE MATTER of an application under rules 29.08, 54.02(2)(b)(i–iii) and 54.02(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015 and rule 6.03 of the Supreme Court (Administration and Probate) Rules 2014

-and-

IN THE MATTER of the estate of MIROSLAV FACEK, deceased

MIREK FACEK	Plaintiff
v
MARTINA GARGANO (as administrator of the estate of MIROSLAV FACEK)	Defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	4 February 2019
CASE MAY BE CITED AS:	Facek v Gargano
MEDIUM NEUTRAL CITATION:	[2019] VSC 31

---

COSTS − Where delay of 14 years by the defendant administrator to administer the deceased’s estate on intestacy − Where defendant executor made Calderbank offer − Where no adjudication on the merits − Where conduct of parties relevant to exercise of costs discretion − Supreme Court Act 1986, s 24 − Supreme Court (General Civil Procedure) Rules 2015, O63 − Civil Procedure Act 2010, ss 22, 24, 25.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Thomas Egan

HER HONOUR:

Introduction

Miroslav Facek died on 7 July 1996. He was survived by his two children, Mirek Facek (‘the plaintiff’) and Martina Gargano (‘the defendant’).

On 23 September 1997, the defendant was granted letters of administration of the estate of the deceased on intestacy. Accordingly, the deceased’s estate passed to the plaintiff and the defendant in equal shares.

At the date of his death, the deceased’s estate included two flats in Barkly Street, St Kilda (‘the properties’) with each flat valued at $100,000 in the inventory of assets and liabilities filed with the defendant’s application for letters of administration.

Plaintiff’s application

By originating motion filed 18 July 2014, the plaintiff sought an administration account in relation to the valuation and sale of the properties and orders that the defendant pay the plaintiff half of the net proceeds of sale of the properties plus interest. Subsequently, by amendment to the originating motion, the plaintiff also sought orders for the removal of the defendant as administrator and trustee of the estate of the deceased.

The proceeding was ultimately compromised, save as to costs, and the parties filed written submissions for the issue to be determined on the papers.

Procedural history

The proceeding was commenced some 17 years after the death of the deceased and the grant of letters of administration. The plaintiff alleges that during this time the defendant sold the properties and failed to distribute his half share of the estate to him. The defendant rejects this, contending the plaintiff was contacted prior to the initiation of the proceeding regarding the distribution of the estate and it was…

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 Facek v Gargano

Details

AGLC: Facek v Gargano [2019] VSC 31
Case: [2019] VSC 31
Decision Date: 4 February 2019

CaseChat Overview and Summary

The plaintiff, Facek, brought a claim against the defendant, Gargano, who was the administrator of the deceased's estate. The dispute centred around the defendant's delay of 14 years in administering the estate following the deceased's intestacy. This delay prompted the plaintiff to issue a claim for costs. The defendant had made a Calderbank offer prior to the trial, and no adjudication on the merits was made. The court had to determine the appropriate exercise of its discretion regarding costs under the Supreme Court Act 1986, Supreme Court (General Civil Procedure) Rules 2015, and the Civil Procedure Act 2010.

The legal issues the court considered included whether the delay in administration justified the award of costs and the relevance of the defendant's conduct, including the Calderbank offer, in the exercise of the court's discretion. The court also had to evaluate the interplay between statutory provisions and rules concerning costs and the conduct of parties in litigation.

The court found that the defendant's delay in administering the estate and the lack of a satisfactory explanation for this delay were significant factors. The court noted that the Calderbank offer, which was made close to the trial, did not mitigate the defendant's conduct adequately. The court emphasised that the conduct of the parties, including the delay and the timing of the Calderbank offer, was relevant to its discretion in awarding costs. Given these considerations, the court determined that the plaintiff was entitled to costs, which reflected the defendant's unreasonable conduct throughout the litigation. The court's decision underscored the importance of timely administration of estates and the consequences of significant delays in fulfilling such responsibilities.

Orders