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 short, the Court has a discretion to grant a stay, and if so, as to the terms of that stay. While it is not necessary to establish special or exceptional circumstances, the party seeking a stay must demonstrate a proper reason, or appropriate case, to warrant the exercise of the discretion to grant a stay in his or her favour. The mere filing of an appeal will not suffice. Rather, the Court generally proceeds from the starting point that the decision below was correct, and hence that the party who has been successful at trial is entitled to the benefit of their judgment. However, from this starting point, the Court exercises a broad discretion which entails consideration of the competing rights of the parties, any prejudice likely to be suffered by either party in the event that a stay is or is not granted, and the overall balance of convenience.
[2] Lesses v Maras (No 2) [2016] SASC 140 at [6] (omitting citations).
Consistently with the above, an applicant for a stay will generally need to establish at least that he or she has an arguable case on appeal, or that the appeal raises serious issues for determination and is not merely an attempt to delay enforcement of the judgment. Put another way, it will generally be necessary to establish that there is a bona fide appeal with at least some prospects of success.[3]
[3] Lesses v Maras (No 2) [2016] SASC 140 at [7]-[8].
As counsel for the respondent, Mr Douglas, identified at the commencement of today’s hearing, given the nature of the orders made below, and that they have already taken effect, it is probably more accurate to describe what the applicant seeks as an injunction restraining any further steps in the administration of the estate pending the hearing and determination of her appeal, rather than a stay of (any further steps in) the enforcement of the orders made. However, even if that be so, it seems to me that analogous principles would nevertheless govern the application.
Significantly in the present case, 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.
The applicant’s notice of appeal does not identify any arguable ground of appeal. It merely asserts that the matter “is to be thoroughly investigated”. Nor was any arguable ground of appeal identified during the course of oral submissions.
Further, and in any event, the arguments raised below in opposition to the orders sought – as summarised in paragraph [6] of the Master’s reasons, and involving various, largely unparticularised, assertions of treason, fraud and fictitious people – were, and are, entirely without merit.
In the affidavit she filed today, the applicant complained about difficulties in accessing the Court portal in relation to her appeal, and said this has impeded her ability to file “pleadings” for the appeal. I am not persuaded that any such difficulties have impacted the applicant’s ability to address her application for a stay or injunction, or to otherwise identify a basis for the relief she seeks – or for an adjournment of her application (which was heard today in response to her request for an urgent hearing).
In my view, the lack of any identified arguable merit in the appeal is sufficient to conclude that the application should be dismissed. There is simply no basis for concluding that this is an appropriate case for a stay.
During the course of the hearing this morning, Mr Jappe informed the Court that he has taken steps towards the sale of the Mile End property that forms part of the estate. Assuming no orders are made by this Court preventing him from doing so, he expects to sell that property within a couple of weeks. Even if, as appears likely, this sale were to occur prior to the appeal being heard and determined, I do not think this will occasion any material prejudice to the applicant. Even though she is a beneficiary of the estate, the property will need to be sold in any event. There is no reason to think that Mr Jappe, an experienced and independent solicitor, will act other than in the best interests of the estate.
Despite the respondent’s acknowledgement that he is unlikely to suffer any significant prejudice were this Court to order a stay or injunction – beyond the general prejudice associated with yet further delay – I am not persuaded that the applicant has established a proper basis for a stay given the lack of any apparent merit in the applicant’s appeal and the delay that has already occurred in the administration of the estate. That is particularly so given the applicant’s delay in commencing her appeal and in bringing this application, and the lack of any explanation for these delays other than a reference to recent correspondence from the administrator apparently announcing an intention to take steps to sell the property in his administration of the estate. It ought to have been anticipated that he would take steps to administer the estate, including by arranging the sale of the property.
For the reasons given, I dismiss the application for a stay or injunction pending appeal.