Georganas v Jappe - [2024] SASCA 24

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
GEORGANAS v JAPPE
[2024] SASCA 24
Judgment of the Honourable President Livesey (ex tempore)
15 March 2024
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
The applicant applied for a stay pending the hearing of two appeals against two orders made by a Master of the Supreme Court.
The applicant is a beneficiary of the deceased estate of her mother. There has recently been a sale of a property which is an asset of the estate, the former home of the applicant’s deceased parents.
The orders made by Judge Bochner, in overview, (1) removed the applicant as executor and, later, (2) removed her caveat lodged over the property, and prohibited her from lodging further caveats over that property without the leave of the court.
In January 2024 Doyle JA refused a stay pending an appeal against the first set of orders. The latest appeal concerns the second set of orders made on 29 February 2024.
HELD (the Court) dismissing the application for a stay pending the appeals:
1.The purpose of the stay is to prevent settlement following the sale of the property pending the applicant’s appeal against her removal as executor. Whether or not a stay is granted does not prevent the applicant challenging her removal as executor.
2.A subsidiary purpose is to protect the applicant’s claim for compensation for any unreturned personal property that is currently held in or on the property. Any legitimate claim for compensation for the loss of any chattels will not be defeated by the sale of the property.
3.Doyle JA found that there was no merit in the appeal concerning the first set orders and there has been no material change in circumstances since that stay was refused. The applicant has not identified any error in the reasons given or orders made by Judge Bochner on 29 February 2024, and has not established any proper basis for a stay.

Uniform Civil Rules 2020 (SA) r 212.5, referred to.
Franklin v South Australian Housing Authority [2024] SASCA 3; Georganas v Georganas [2024] SASCA 1; Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590; Lesses v Maras (No 2) [2016] SASC 140; Marschall v Elson (No 2) [2023] SASCA 3; Playford Vineyards Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152, considered.

GEORGANAS v JAPPE
[2024] SASCA 24
Civil – Livesey P (ex tempore):
Introduction

This is an urgent application for a stay or injunction pending the hearing of two appeals against orders made by Judge Bochner on 8 August 2023 and on 29 February 2024.[1]
[1] Rule 212.5 of the Uniform Civil Rules 2020 (SA) provides that “when the jurisdiction to hear and determine an appellate proceeding is vested in, or to be exercised by, the Court of Appeal, a single Judge may make interlocutory orders and other orders ancillary to the hearing and determination of the appellate proceeding”. This includes orders as to the “hearing by the Court of Appeal of the appellate proceeding or any issue related to it”.
The appeal against the orders made on 8 August 2023 has been listed for hearing on 5 June 2024. The latest appeal by Ms Angela Georganas (the applicant) is against orders made by Judge Bochner on 29 February 2024 which:
-Removed the caveat lodged by the applicant over 33 Tarragon Street, Mile End SA 5031 (the property); and
-Prohibited the applicant from lodging any further caveat over the property without the leave of the Court.
The property is an asset of the estate of the applicant’s deceased mother, and the applicant is a beneficiary of her mother’s estate (the estate).
The property was sold at auction on 2 March 2024. A contract for the sale and purchase of the property has been signed for $1.26 million.
Orders are sought to reinstate the caveat, and thereby prevent settlement of the property which is scheduled to occur on 24 April 2024.
The applicant’s case
The applicant is not legally represented. She is aggrieved about her removal as the executor of the estate. In reasons delivered by the Master on 18 July 2023, she found that the applicant had failed to take any steps to administer the estate since the deceased’s death in August 2019 and, particularly, since the grant of probate in April 2021.
On 8 August 2023 the Master made orders:
-Revoking the 28 April 2021 grant of probate by which the applicant and another (Athanasia Nikolakopoulos) were appointed executors of the estate;
-Passing over the applicant as an executor; and
-Granting Letters of Administration in favour of an independent solicitor, Mr Mark Jappe of Adelta Legal, the respondent in this matter.
A Judge of the Court of Appeal dismissed a similar application for a stay of these orders on 17 January 2024.[2]
[2] Georganas v Georganas [2024] SASCA 1 (Doyle JA).
These orders are the subject of an appeal presently listed for hearing before the Court of Appeal on 5 June 2024. At the request of the applicant, I will list both that appeal and this latest appeal for hearing next Thursday, 21 March 2024 at not before 2.15 pm.
In the course of her reasons given on 29 February 2024, Judge Bochner explained:
I intend today to make an order for the removal of the caveat which is currently sitting on the property to allow the auction to go ahead as scheduled.
It appears to me that the lodging of the caveat was an attempt by the respondent to achieve the same result that she failed to achieve in her application for a stay of the orders that I made in August 2023. That application, as I have already discussed this afternoon, was dismissed by Doyle JA, and as a result, there is no basis for not dealing with the caveat today and for removing it.
It is well known, in this area of law, that a residuary beneficiary under a will has only one entitlement, and that is to have the estate duly administered. A residuary beneficiary does not have any interest in any particular asset of the estate. The only right that such a beneficiary has is to have the estate duly administered.
The applicant has deposed to the view that “the sale of the property could now prejudice [her] permanently” where the caveat was initially put in place in order for the Court of Appeal to hear argument about whether the applicant should have been removed as the executor of the estate.
The applicant also submitted that the caveat served to “[protect her] claim to compensation should [her various] personal items never be returned to [her]”.
The applicant says that the respondent has not respected her parents’ wishes, nor kept her informed. She says that she is being “blocked in all ways”. She is critical of the respondent’s conduct generally.
Granting a stay pending an appeal
For the purposes of this hearing it is not necessary to distinguish between a stay and an injunction. The legal right relied on is the applicant’s interest in being restored as the rightful executor of the estate.
The principles which govern the grant of a stay pending appeal are well-known. For example, in Marschall v Elson (No 2) the Court of Appeal explained:[3]
A successful litigant is ordinarily entitled to the benefit of a judgment unless and until it is set aside or varied on appeal. It is for the party seeking a stay to demonstrate a proper basis for the favourable exercise of the court’s discretion. When determining whether it is in the interests of justice to grant a stay the court will usually evaluate that by reference to factors such as whether and to what extent the appeal is reasonably arguable, as well as the balance of convenience.[4]
[3] Marschall v Elson (No 2) [2023] SASCA 3, [10] (Livesey P, Lovell and Doyle JJA).
[4] Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590 (White J); Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152, [19]-[25] (Stanley J).
In Franklin v South Australian Housing Authority the Court recently emphasised the need for there to be some utility associated with an appeal when considering a stay application:[5]
It is necessary for the applicant to demonstrate proper reason for the favourable exercise of the discretion to grant a stay pending an application for leave to appeal. However, even assuming that there is a bona fide appeal with some prospect of success, it is also necessary for the applicant to address why the balance of convenience favours the grant of a stay, including any prejudice likely to be suffered by any party depending on whether a stay is or is not granted.[6] If there is no utility in an appeal, it will usually be difficult indeed to demonstrate that a stay should be granted.
[5] Franklin v South Australian Housing Authority [2024] SASCA 3 [8] (Livesey P and Bleby JA).
[6] Lesses v Maras (No 2) [2016] SASC 140, [6]-[8]; Georganas v Georganas [2024] SASCA 1, [5]-[6] (Doyle JA).
Similarly, if there is no utility in a stay, it will be difficult indeed for an applicant to demonstrate that the Court should order a stay.
Determining the application for a stay
On this application, the stated purpose for the stay is to prevent the sale of the property and to preserve the house and land as an asset of the estate pending the applicant’s appeal against her removal as executor. A subsidiary purpose is to protect her claim for compensation in the event that her personal property which was said to be in the house or on the property is not returned to her.
Even if there were some merit in the appeal against the orders made on 8 August 2023, and Doyle JA has found that there is none,[7] whether or not a stay is granted does not prevent the applicant challenging her removal as executor.
[7] Georganas v Georganas [2024] SASCA 1, [8]-[12] (Doyle JA).
In any event, there has been no discernible material change in circumstances since the matter was before Doyle JA on 17 January 2024. The sale of the property was then in prospect. The respondent advised the Court that “assuming no orders [were] made … he [expected] to sell … within a couple of weeks”.[8] The Court considered and rejected the proposition that the sale would cause the applicant prejudice because, “though she is a beneficiary of the estate, the property will need to be sold in any event”.[9]
[8] Georganas v Georganas [2024] SASCA 1, [13] (Doyle JA).
[9] Georganas v Georganas [2024] SASCA 1, [13] (Doyle JA).
The applicant does not suggest that the respondent has acted outside the proper scope of his power and discretion. Simply, she would prefer that he took a different approach to managing the estate.
The applicant has not identified any error in the reasons given or orders made by Judge Bochner on 29 February 2024. For example, she does not suggest that as a beneficiary she has any caveatable interest in the property. In addition, whether or not a stay is granted does not affect whatever rights the applicant may have to claim compensation for the loss of any chattels that may have been in or on the property. Any legitimate claim will not be defeated by the mere fact of sale.
Conclusion
I am not persuaded that the applicant has established any proper basis for a stay of the orders made on 29 February 2024.
I dismiss the application for a stay pending appeal.
I will list both appeals for hearing next Thursday, 21 March 2024 at not before 2.15 pm.
Any outlines are to be filed and served by 4.00 pm on Tuesday, 19 March 2024.