Georganas v Georganas; Georganas v Jappe - [2024] SASCA 32

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
GEORGANAS v GEORGANAS; GEORGANAS v JAPPE
[2024] SASCA 32
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Bleby)
21 March 2024
SUCCESSION - ADMINISTRATION OF ESTATE - OTHER MATTERS
At the request of the appellant, the Court heard two appeals concerning the administration of the estate of the appellant’s deceased mother on an urgent basis.
The first appeal concerned, amongst other matters, orders revoking the appellant’s appointment as executor due to her inactivity as executor, and appointing an independent solicitor as administrator of the estate. The respondent to the first appeal is the appellant’s brother. The appellant and the respondent are both beneficiaries of the estate.
The second appeal concerned orders which, amongst other matters, removed the appellant’s caveat over the property which was the former home of her deceased parents. That property is an asset of the estate. The caveat was lodged so as to prevent its sale at auction as part of the administration of the estate. The property has now been sold and settlement is scheduled for 26 April 2024. The respondent to the second appeal is the court appointed Administrator.
The appellant’s submissions showed that she was primarily concerned with the administration of the estate and the claim that she wishes to make against the Administrator in connection with the loss of personal property which she maintains was stored in the property.
HELD (the Court) dismissing both appeals:
1.There is no merit in either appeal. The appellant did not identify any material error by the primary judge in connection with either appeal.
2.The appellant has not demonstrated that she did take action to administer the estate in the four years she held the office of executor.
3.The appellant does not claim that in her capacity as a residuary beneficiary she has a caveatable interest in the property. She has not demonstrated that the Administrator has acted other than properly and in accord with his duties and powers of office.
4.The respondent in the first appeal will have his costs on a standard basis paid out of the estate. The respondent Administrator in the second appeal will have his costs paid on the basis of an indemnity out of the estate.

Georganas v Georganas [2024] SASCA 1; Georganas v Jappe [2024] SASCA 24, considered.

GEORGANAS v GEORGANAS; GEORGANAS v JAPPE
[2024] SASCA 32
Court of Appeal – Civil: Livesey P and Bleby JA
THE COURT (ex tempore):
Introduction

The Court has before it two appeals. They concern the administration of the estate of the appellant’s deceased mother, in a context where the appellant has shown a degree of animosity toward her brother, the respondent in the first appeal. They are both beneficiaries of the estate.
The first appeal was filed on 29 November 2023 and concerned, amongst other matters, orders made by Judge Bochner on 8 August 2023 revoking the 28 April 2021 grant of probate under which the appellant and another were appointed executors.
The second appeal was filed on 8 March 2024 and concerned orders made by Judge Bochner on 29 February 2024 which, amongst other matters, removed the caveat over the property which is an asset of the estate and which had been the home of the appellant’s parents.
Applications for a stay of these orders, as well as to prevent the court appointed Administrator, Mr Mark Jappe of Adelta Legal, from proceeding with the proposed sale of the property, were dismissed by Doyle JA on 17 January 2024,[1] and by Livesey P on 15 March 2024.[2] The Administrator is the respondent in the second appeal.
[1] Georganas v Georganas [2024] SASCA 1.
[2] Georganas v Jappe [2024] SASCA 24.
The property sold following an auction and settlement is scheduled to occur on 26 April 2024. As was recorded in the reasons given on 15 March 2024, at the request of the appellant these appeals have been brought on together for an urgent hearing.[3]
[3] Georganas v Jappe [2024] SASCA 24, [9] (Livesey P).
For the reasons that follow, these appeals must be dismissed.
The first appeal: revocation
The orders made on 8 August 2023 followed reasons delivered on 18 July 2023. In essence, the Master:
·revoked the 28 April 2021 grant of probate by which the appellant and another (Athanasia Nikolakopoulos) were appointed executors of the estate;
·passed over the appellant as an executor; and
·granted Letters of Administration in favour of an independent solicitor, Mr Jappe, the respondent Administrator in the second appeal.
As Doyle JA explained:[4]
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.[5] 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.
[4] Georganas v Georganas [2024] SASCA 1, [2].
[5] Georganas v Georganas (unreported, Supreme Court of South Australia, Master Bochner, 18 July 2023).
Doyle JA was satisfied that the appellant failed to identify any arguable ground of appeal, or otherwise demonstrate that the proposed appeal was bona fide with at least some prospect of success.[6]
[6] Georganas v Georganas [2024] SASCA 1, [8].
Notwithstanding these views, we have independently reviewed the reasons of the Master in light of the Notice of Appeal. It is noteworthy that the Notice of Appeal does not identify any grounds of appeal in any conventional sense. Rather, the appellant simply asserts that the appeal “is to be thoroughly investigated”. Under the “Orders sought”, the appellant pleads:[7]
To dismiss the Orders made by Judge Bochner as it goes against our parents wishes
To investigate this unknown name of “EFSTATHIOS”
[7] The spelling and punctuation are as set out in the notice.
The appellant is concerned about the use of the name “Efstathios” when her mother’s will referred to her brother as “Steve”.
In connection with her plea for an extension of time, the appellant sought the extension “for an investigation” and alleged that Judge Bochner was “acting oppressively” and:
Allegedly Attempting to pervert Justice by refusing to require Estathios Georganas to provide Proof of Identity – and an alleged conflict of interest in her comments …
We have had the benefit of submissions from the appellant, the respondent to the first appeal and the respondent Administrator in the second appeal. The appellant’s materials, despite having been filed with the benefit of an extension of time, do not identify any error in the reasons or orders of the Master. In particular, it has not been demonstrated that the appellant took any steps to administer the deceased’s estate in the four years she held the office of executor.
The appellant explains that inactivity as resulting from the difficulties she encountered with her brother.
The appellant’s submissions are set out in two interlocutory applications dated 20 March 2024, supported by two affidavits affirmed on the same day, one filed in each appeal. These were supplemented by the appellant’s oral submissions today, made with assistance from her “advocate”, Angela. It is not necessary to address all of this material. To some extent it traverses what the appellant claims were difficulties within her family, but it is primarily concerned with the ongoing administration of the estate and the claim that she wishes to make against the administrator for $150,000 in connection with the loss of various personal property, including her jewellery which had been stored in the property.
These matters cannot be determined as part of the appeals before this Court today. It is not appropriate for this Court to make orders connected with the ongoing administration of the estate.
Second appeal: removal of the appellant’s caveat
The appellant lodged a caveat over the property so as to prevent its planned auction as part of the administration of the deceased’s estate. In her reasons given on 29 February 2024, the Master expressed the view that the caveat was lodged in an attempt to achieve the result that the appellant failed to achieve when in January 2024 she sought a stay from Doyle JA.
The Master found that there was “no basis for not dealing with the caveat today and for removing it”. Her Honour pointed out that the appellant was a residuary beneficiary and only had the entitlement to have the estate duly administered. The appellant had no interest in any particular asset of the estate.
The Master’s orders removed the caveat and prevented any further caveat being lodged without leave. The appeal grounds relied on by the appellant are as follows:[8]
1.That HH the learned Judge at first instance, erred at law in ordering the removal of [the caveat].
2.[The caveat] registered over the whole of the land … needs to remain and not be removed as the executor Mark Jappe has illegally disposed of my personal items which were stored at my late mothers [house.] I will be seeking compensation as per attached inventory, including my late mother’s possessions.
3.There is a pending appeal on June 5^th 2024 re Judge Bochner and her dismissing or ignoring all evidence which resulted in removal of [the caveat.] Judge Bochner should never have granted a hearing to remove caveat given that there is an appeal on June 5^th 2024.
[8] Again, the spelling and punctuation are as set out in the notice.
The reference to the appeal hearing on 5 June 2024 is a reference to the original date for the hearing of the first appeal. As mentioned, at the appellant’s request both appeals have today been called on together.
The appellant has not identified any error in the reasons given or orders made by Judge Bochner on 29 February 2024. The appellant does not claim that in her capacity as a residuary beneficiary she has a caveatable interest in the property. Rather, her concern is directed to the loss of personal property which the appellant maintains was stored in her mother’s house. For the reasons earlier given, that is not a matter which supports the retention of a caveat and, to the extent that there may be a claim it can be pursued regardless of the sale of the property.[9]
[9] Georganas v Jappe [2024] SASCA 24, [22] (Livesey P).
Conclusion
There is no merit in either appeal. In particular, the appellant has not demonstrated that the Administrator has acted other than properly and in accord with his duties and powers of office.
The order of the Court is that these appeals are dismissed, with costs.
The respondent in the first appeal will have his costs on a standard basis paid out of the estate. The respondent Administrator in the second appeal will have his costs paid on the basis of an indemnity out of the estate.