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:

1. 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.

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

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

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

1. 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.

1. 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.

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

1. 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 the general rule that an appeal does not operate as a stay.[1]

   [1]Maher v Commonwealth Bank of Australia [2008] VSCA 122 [19]–[27] (Dodds-Streeton JA); Cellante v G Kallis Industries Pty Ltd (1991) 2 VR 653, 655 (Young CJ).

1. This morning, I heard Mr Giurina’s application for a stay.  The grounds upon which he contends that a stay should be granted were the following: 

·McMillan J’s decision was erroneous and the appeal had good prospects of success; and

·unless the order was stayed, State Trustees would compromise claims between the estate and the Owners Corporation for the North Coburg unit.

1. I indicated to Mr Giurina that I would proceed on the basis, without considering his arguments in detail, that his proposed application for leave to appeal was arguable.  I asked what the special or exceptional circumstances were that would warrant a stay in this particular case. 

1. Mr Giurina contended that the proposed appeal would be rendered nugatory if a stay were not granted, because State Trustees would compromise the claims between the estate and the Owners Corporation.

1. The Owners Corporation claims against the estate a sum of $11,161.72.  VCAT has ruled in favour of the Owners Corporation, and against the estate, and has made an order for the recovery of that sum together with interest and costs.  The Owners Corporation is now taking bankruptcy proceedings against the estate in relation to that debt.

1. Mr Giurina has instituted an appeal to this Court on a question of law against VCAT’s decision concerning the debt.  That matter was adjourned, as was the bankruptcy proceeding, pending the outcome of State Trustees’ application for removal. 

1. Mr Mah, who appeared on behalf of State Trustees, both in its capacity as the new executor and trustee and in its capacity as administrator of Licia Giurina, submitted that the application for a stay should be refused.

1. Mr Mah submitted that Mr Giurina has no financial interest in the estate, and that the only party that has a financial interest is Licia, for whom State Trustees is the administrator.  State Trustees, in its capacity as her administrator, opposes any stay.  State Trustees points to the fact that there has already been considerable delay in the administration of the estate and that the disputes with the Owners Corporation are costing the estate money.

1. Mr Mah advised the Court that State Trustees does consider that the appeal from VCAT’s order should be withdrawn, but he informed the Court that State Trustees will not withdraw the appeal unless it has court sanction for doing so, and that it will give Mr Giurina an opportunity to be heard in relation to any direction which it might seek authorising it to withdraw the appeal, or such other step as it may consider is appropriate in order to obtain court sanction for the withdrawal of the appeal.

1. In my opinion, this is not a case where a stay should be granted. 

1. There has already been very considerable delay in the administration of this estate.  Mr Giurina, the applicant for the stay, has no financial interest in the estate.  The only party who does have a financial interest in the estate is his mother, Licia Giurina, and State Trustees as her administrator opposes the stay.

1. The only ground upon which Mr Giurina says a stay is warranted is his concern that State Trustees will compromise with the Owners Corporation and withdraw the appeal from the VCAT decision concerning the dispute with the Owners Corporation.  State Trustees has advised that it will not withdraw the appeal without court sanction. 

1. In the circumstances, I consider that a stay is unwarranted.  The application for a stay is refused.

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