Giurina v Giurina - [2018] VSCA 262

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0121

IN THE MATTER of the estate of IRMA EUGENIA LOCHER (deceased)

-and-

IN THE MATTER of s 34 of the Administration and Probate Act 1958 and ss 48 and 51 of the Trustee Act 1958

BETWEEN

ERMANNO ORLANDO GIURINA (who is sued in his capacity as a co-executor of the Estate of IRMA EUGENIA LOCHER deceased)

and

LICIA VITTORIA GIURINA (who brings this proceeding via her administrator State Trustees Ltd)

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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2018
DATE OF JUDGMENT:	17 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 262
JUDGMENT APPEALED FROM:	[2018] VSC 599 (McMillan J)

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PRACTICE AND PROCEDURE – Application for stay – Order removing applicant as executor – Compromise of other proceedings – Application refused – Maher v Commonwealth Bank of Australia [2008] VSCA 122 and Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653 applied – Supreme Court (General Civil Procedure) Rules 2015 r 64.15.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Applicant in person
For the Respondent	Mr T Mah	State Trustees Ltd

WHELAN JA:

Irma Eugenia Locher (deceased) died on 14 February 2003. By her will, she appointed her daughter, Licia Vittoria Giurina, her son-in-law, Orlando Fortunato Giurina, and her grandson, Hermann (also known as Ermanno) Orlando Giurina, as her executors and trustees. Licia Giurina was the sole beneficiary, provided she lived for one month from the date of the testatrix’s death.

Probate of the will was granted to Licia Giurina and Ermanno Giurina on 28 June 2007. Orlando Giurina had pre-deceased the testatrix.

The principal asset of the deceased estate is a unit in North Coburg.

On 16 April 2018, the Victorian Civil and Administrative Tribunal (‘VCAT’) appointed State Trustees Ltd as administrator for Licia Giurina.

On 10 August 2018 this proceeding was issued by State Trustees, acting in its capacity as administrator of Licia Giurina, seeking the removal of the executors and trustees, and the appointment of an independent administrator in their place. State Trustees had approached potential independent administrators, but had been unable to procure one willing to act. State Trustees indicated that it was prepared to act as administrator of the deceased’s estate.

On 3 October 2018, McMillan J, amongst other things, ordered the removal of Licia and Ermanno Giurina as executors and appointed State Trustees as trustee of the deceased’s estate and administrator of the will. On 10 October 2018, McMillan J published reasons for that decision. In substance, her reasons were:

·the inordinate delay in administering the estate;
·Licia Giurina’s incapacity; and
·the potential for a conflict of interest between the interests of the estate and Ermanno Giurina’s personal interest.

By an application dated 8 October 2018, Ermanno Giurina has sought a stay of the orders made by McMillan J.

The principles which apply in relation to such stays are well established. An applicant for a stay must demonstrate special or exceptional circumstances to remove the case from…

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 Giurina v Giurina

Details

AGLC: Giurina v Giurina [2018] VSCA 262
Case: [2018] VSCA 262
Decision Date: 17 October 2018

CaseChat Overview and Summary

The parties in this case were Giurina and Giurina. The nature of the dispute was an application for a stay of proceedings in the Supreme Court of Victoria, brought by the applicant Giurina against the respondent Giurina. The dispute arose out of an order removing the applicant as executor of the estate of the deceased. The applicant sought to have the proceedings stayed on the basis that there had been a compromise of other proceedings. The court was required to decide whether the application for a stay should be granted under the relevant procedural rules.

The legal issues before the court included the interpretation and application of the relevant procedural rules, specifically Supreme Court (General Civil Procedure) Rules 2015 r 64.15. The applicant argued that the compromise of other proceedings should result in the stay of the proceedings. The respondent contended that the compromise did not justify a stay and that the applicant had not demonstrated the requisite exceptional circumstances. The court considered relevant case law, including Maher v Commonwealth Bank of Australia [2008] VSCA 122 and Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653, to determine whether the applicant had satisfied the necessary criteria for a stay.

The court held that the applicant had not demonstrated the requisite exceptional circumstances for a stay of proceedings. The court noted that the compromise of other proceedings did not, in itself, warrant a stay. The court found that the applicant had not provided sufficient evidence to support the application for a stay, and that the case did not meet the threshold for exceptional circumstances. The court dismissed the application, applying the relevant procedural rules and case law. As a result, the proceedings were not stayed, and the order removing the applicant as executor remained in effect.

Orders