Giurina v Giurina [No 2] - [2018] VSCA 311

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) [No 2]

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 November 2018
DATE OF JUDGMENT:	22 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 311
JUDGMENT APPEALED FROM:	[2018] VSC 599

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PRACTICE AND PROCEDURE – Application for stay – Order removing applicant as executor – Applicant’s second application for stay – 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	In person
For the Respondent	Mr T Mah	State Trustees Ltd

BEACH JA:

The protagonists in this proceeding are the applicant (Ermanno Giurina), who told the primary judge (McMillan J) that he is ‘legally qualified’,[1] and State Trustees Limited. State Trustees are the administrator of the estate of the applicant’s mother, Licia Giurina.[2] On 3 October 2018, McMillan J made orders in the primary proceeding adverse to the applicant.
[1]Mr Giurina stated this in answer to a question from the judge at the commencement of the hearing of the primary proceeding. See also, Re Giurina [2018] VSC 599 [29] (‘McMillan J reasons’). See further, Giurina v Melbourne Health [2018] VSC 143 [27], referred to by the primary judge at McMillan J reasons [28]–[29]. Additionally, in an affidavit sworn 12 September 2018 (referred to below), the applicant swore that he ‘had been admitted as a Barrister and Solicitor of this Court’.
[2]According to a heavily redacted Royal Melbourne Hospital record tendered by the applicant as an exhibit to an affidavit sworn by him on 19 November 2018, Licia Giurina was 84 years of age at the time of her admission to that hospital on 4 December 2017.

On 11 October 2018, following a hearing conducted on that day, Whelan JA refused the applicant’s application for a stay of the orders made by McMillan J on 3 October 2018. His Honour published reasons for his refusal of the stay application on 17 October 2018.[3]
[3]Giurina v Giurina [2018] VSCA 262 (‘First stay reasons’).

By an application dated 6 November 2018, Mr Giurina has made a second application to stay the orders made by McMillan J. In this application, Mr Giurina seeks ‘leave for a rehearing of my stay application which was initially heard on 11 October 2018’.

The background to the first stay application was set out by Whelan JA as follows:

Irma Eugenia Locher (deceased) died on 14 February 2003. By her will,…

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.

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Details

Case: [2018] VSCA 311
Decision Date: 22 November 2018

CaseChat Overview and Summary

In Giurina v Giurina [No 2], the Court was asked to consider an application for a stay of proceedings by the applicant, Giurina, against the respondent, also Giurina. The case arose in the context of an estate matter, where the applicant had been removed as executor and was seeking to halt proceedings related to the estate. The application was made in the Supreme Court of Victoria and was the applicant's second attempt to secure a stay after a previous application had been refused. The central legal issues before the Court involved the principles governing the grant of a stay of proceedings, particularly in the context of estate matters and the removal of an executor.

The Court had to determine whether the applicant's circumstances met the stringent criteria for a stay as set out in relevant authorities. The Court considered the principles established in Maher v Commonwealth Bank of Australia [2008] VSCA 122 and Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653, which emphasise the need for the applicant to demonstrate a strong case on the merits and that the balance of convenience favours a stay. The Court also examined the provisions of the Supreme Court (General Civil Procedure) Rules 2015 r 64.15, which provide the procedural framework for applications of this nature.

After thorough consideration, the Court concluded that the applicant had not provided sufficient grounds to warrant a stay. The applicant's arguments did not meet the threshold for demonstrating a strong case on the merits, nor did they show that the balance of convenience favoured a stay. The Court emphasised the importance of the executor's role and the need to avoid unnecessary delay in estate matters. Consequently, the application for a stay was refused. The Court's decision underscored the stringent requirements for such applications and the Court's reluctance to interfere with the orderly administration of estates.

Orders