Georganas v Georganas - [2024] SASCA 1

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
GEORGANAS v GEORGANAS
[2024] SASCA 1
Judgment of the Honourable Justice Doyle (ex tempore)
17 January 2024
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
Application for a stay pending the hearing of the appeal.

The applicant is appealing a decision of a Master of this Court in which her Honour allowed an application made by the respondent for the revocation of a grant of probate, the passing over of the applicant as executor and the granting of letters of administration in favour of an independent solicitor.
Held, refusing the application:
1.the applicant has failed to identify any arguable ground of appeal or to otherwise demonstrate that the proposed appeal is a bona fide appeal with at least some prospect of success;
2.there is no reason to think that the applicant would be materially prejudiced by a decision not to grant a stay; and
3. the applicant has not demonstrated a proper basis for a stay.

Lesses v Maras (No 2) [2016] SASC 140, applied.

GEORGANAS v GEORGANAS
[2024] SASCA 1
Court of Appeal – Civil

DOYLE JA (ex tempore): The applicant (Angela Georganas) seeks a stay of orders made by a Master of this Court on 8 August 2023, the effect of which was to:
·revoke the 28 April 2021 grant of probate by which the applicant and another (Athanasia Nikolakopoulos) were appointed executors of the estate of the applicant’s deceased mother (Vasiliki Georganas);
·pass over the applicant as an executor; and
·grant Letters of Administration in favour of an independent solicitor, Mark Jappe of Adelta Legal.
The orders were made upon the application of the respondent (her brother, Efstathios Georganas), and for the reasons delivered by the Master on 18 July 2023.[1] The essence of the Master’s reasons was that the applicant had failed to take any steps to administer the deceased’s estate since her death in August 2019, and in particular since the grant of probate in April 2021. Indeed, the Master found that the applicant had refused to administer the estate, including by refusing to accept the binding and enforceable nature of the orders made consequent upon an earlier settlement deed between the parties. This had occurred in a context of the applicant displaying what the Master described as “ongoing and intractable” hostility towards her brother.
[1] Georganas v Georganas (unreported, Supreme Court of South Australia, Master Bochner, 18 July 2023).
The applicant’s contentions in opposition to the orders sought below were summarised in the Master’s reasons and were held to be plainly without merit.
The background and context to the present application is set out in the Master’s reasons, and these reasons should be read in conjunction with those reasons.
The principles governing the grant of a stay of execution pending appeal are well known and need not be addressed in detail. They are as summarised in the following passage from Lesses v Maras (No 2):[2]
In…

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.

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Details

Case: [2024] SASCA 1
Decision Date: 17 January 2024

CaseChat Overview and Summary

In *Georganas v Georganas*, the Full Court of the Supreme Court of South Australia considered an appeal concerning the refusal of a stay of proceedings. The primary dispute involved an application for a stay of a judgment that had been entered against the appellant, Mr. Georganas, in favour of the respondent, Mrs. Georganas.

The central legal issue before the Full Court was whether the primary judge had erred in refusing to grant a stay of the judgment. This required the court to consider the principles governing the grant of a stay of execution, particularly in circumstances where an appeal has been lodged.

The Full Court reasoned that the primary judge had correctly applied the established principles for granting a stay. These principles require a strong case to be made out, demonstrating that the appeal is not frivolous or vexatious and that there are substantial grounds for arguing that the judgment below was wrong. The court noted that the appellant had failed to satisfy this onus, as the grounds of appeal were not sufficiently compelling to warrant the extraordinary remedy of a stay. The court also considered the potential prejudice to the respondent if a stay were granted.

Ultimately, the Full Court dismissed the appeal and affirmed the primary judge's decision to refuse the stay of proceedings.

Orders