Greater Geelong City Council v Giurina

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2022 03279

BETWEEN:

GREATER GEELONG CITY COUNCIL	Plaintiff
v
ERMANNO GIURINA	First Defendant
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November and 21 November 2022
DATE OF JUDGMENT:	22 February 2023
CASE MAY BE CITED AS:	Greater Geelong City Council v Giurina & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 59

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REAL PROPERTY — Caveats — Application for removal of caveats under s 90(3) of the Transfer of Land Act 1958 (Vic) — Question of standing — Whether there is a prima facie case to be tried — Estoppel — Where property is subject of a specific devise in a will — Whether the balance of convenience favours the removal of the caveats —Order for removal of caveats to be made.

COURTS AND JUDGES — Recusal – Whether there is a reasonable apprehension of bias —Application that a judge recuse herself —Judge heard previous application concerning subject land —Whether that gives rise to reasonable apprehension of bias —Application that judge recuse herself refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S P Woolley of counsel	Harwood Andrews Lawyers
The First Defendant in person
No appearance by or on behalf of the Second Defendant

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 3

The caveats which are the subject of this proceeding.............................................................. 7
The Warrants Application........................................................................................................... 8
Mr Giurina’s submissions at the Warrants Application................................................ 8
The Council’s submissions at the Warrants Application............................................... 9
Mr Giurina’s reply at the Warrants Application............................................................. 9
Outcome of the Warrants Application........................................................................... 10

Evidence............................................................................................................................................. 11

The Council’s evidence.............................................................................................................. 11
Mr Giurina’s previous statements/evidence regarding the ownership/status of the Property.................................................................................................................................. 12
Correspondent regarding First Caveat........................................................................... 15

The First Giurina Affidavit........................................................................................................ 16
The Will............................................................................................................................... 16
The assent........................................................................................................................... 16
Mr Giurina’s previous statements/evidence regarding the ownership/status of the Property.................................................................................................................................. 18

The Council’s evidence in reply................................................................................................ 20
Mr Giurina’s evidence in reply to the Second Broadhead Affidavit................................... 21

The Recusal Application................................................................................................................ 22

General principles applicable to the Recusal Application.................................................... 22
Mr Giurina’s submissions.......................................................................................................... 23
The Council’s submissions........................................................................................................ 26
Consideration.............................................................................................................................. 26

The Caveat Removal Application................................................................................................. 29

General principles applicable to the Caveat Removal Application..................................... 29
Question of Council’s standing to make the Caveat Removal Application....................... 30
Mr Giurina’s submissions................................................................................................ 30
The Council’s submissions............................................................................................... 31
Consideration..................................................................................................................... 31

The First Caveat........................................................................................................................... 32
Mr Giurina’s submissions................................................................................................ 32
Prima facie case..................................................................................................... 32
Balance of convenience........................................................................................ 34

The Council’s submissions............................................................................................... 34
Prima facie case..................................................................................................... 34
Balance of convenience........................................................................................ 36

Consideration..................................................................................................................... 36

The Second Caveat...................................................................................................................... 40
Mr Giurina’s submissions................................................................................................ 40
Prima facie case..................................................................................................... 40
Balance of convenience........................................................................................ 41

The Council’s submissions............................................................................................... 41
Prima facie case..................................................................................................... 41
Balance of convenience........................................................................................ 41

Consideration..................................................................................................................... 42

Conclusion......................................................................................................................................... 43

HER HONOUR:

Introduction

By originating motion and summons filed 25 August 2022, Greater Geelong City Council (‘Council’), the plaintiff in this matter, seeks orders pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (‘TLA’) for the removal of two caveats lodged by the first defendant (‘Mr Giurina’) on the title to the property located at 120 Elizabeth Street Geelong West, being the land described in certificates of title volume 6451 folio 142 and volume 6835 folio 810 (‘Property’). I shall refer to this as the Caveat Removal Application.[1]
[1]By order made on 11 November 2022 on the Court’s own motion, the Honourable Justice McDonald referred the hearing and determination of the Caveat Removal Application to me.

In support of its application, the Council relies on the following materials:

(a) affidavit of Benjamin Broadhead sworn 24 August 2022 (‘First Broadhead Affidavit’) with exhibit bundle BRB-1. Mr Broadhead is a lawyer employed by Harwood Andrews, solicitors for the Council, and has the conduct of this proceeding on behalf of the Council;[2]
[2]First Broadhead Affidavit, [1].

(b) affidavit of Danelle Suzanne Wortman sworn 14 September 2022 (‘Wortman Affidavit’) with exhibit bundle DSW-1;

(c) affidavit of Mr Broadhead sworn 17 November 2022 (‘Second Broadhead Affidavit’) with exhibit bundle BRB-1; and

(d) the written outline of submissions of its counsel dated 10 November 2022 (‘Council’s Written Outline’).

Mr Giurina opposes the Caveat Removal Application. In so doing, he relies on the following materials:

(a) his affidavit sworn 28 October 2022 (‘First Giurina Affidavit’) with exhibit bundle EG-1;

(b) his affidavit sworn 20 November 2022 with exhibit bundle EG-1 (‘Second Giurina Affidavit’) in response to the Second Broadhead Affidavit; and

(c) his written outline of submissions dated 10 November 2022 (‘Giurina Written Outline’).

By letter dated 14 September 2022 to the Council’s solicitors, the second defendant advised that she did not object to the orders sought by the Council and did not intend to appear in the proceeding.[3]
[3]Exhibit DSW-1, pp. 242-243.

By summons filed in this proceeding on 3 November 2022, Mr Giurina seeks orders that I recuse myself from hearing the Caveat Removal Application on the ground of apprehended bias and that the Caveat Removal Application be listed for hearing before another Associate Judge (‘Recusal Application’).

In support of the Recusal Application, Mr Giurina relies on:

(a) his affidavit sworn 2 November 2022 (‘Giurina Recusal Affidavit’) with exhibit bundle EG-1; and

(b) his written submissions dated 7 November 2022 (‘Giurina Recusal Submissions’).

The Council opposes the Recusal Application.

Both applications were listed before me for hearing on 18 November 2022. I commenced with the Recusal Application. After hearing from both parties, I stated that I would not be recusing myself (‘Recusal Decision’) and would proceed to hear the Caveat Removal Application. I further stated that I would give reasons for refusing the Recusal Application when giving my reasons regarding the Caveat Removal Application.

Mr Giurina objected to that course, stating that I ought refrain from moving straight on to the Caveat Removal Application so that he had an opportunity to appeal or seek leave to appeal the Recusal Decision. The Council submitted that I should not accede to this. I ruled that I would not take the course urged upon me by Mr Giurina. Mr Giurina then stated that his participation in the substantive hearing of the Caveat Removal Application should not be taken as a waiver of his rights to appeal, or seek leave to appeal, the Recusal Decision. I accepted that this should be noted for the record.

Mr Giurina also objected to the hearing of the Caveat Removal Proceeding occurring on 18 November 2022 due to the late filing of the Second Broadhead Affidavit. He said that he had only received it that morning and had not had an opportunity to properly digest it, and that it was filed outside the timetable set by Keith JR in orders made on 27 September 2022. I indicated that I would give leave to the Council to rely on the Second Broadhead Affidavit and adjourned the hearing to 21 November 2022 to give Mr Giurina time to review it.

For the reasons which follow, I will grant the Caveat Removal Application.

Consistent with what I said when pronouncing the Recusal Decision, these reasons for judgment include my reasons for refusing the Recusal Application.

Background

It is necessary to set out, in some detail, the background to this Proceeding in order to provide context for both applications.

The uncontroversial factual background is set out below:

(a) The sole registered proprietor of the Property is Carolina Nacinovich.

(b) Ms Nacinovich died on 10 February 2002.

(c) Under Ms Nacinovich’s will dated 26 March 1995 (‘Will’), Mr Giurina was named as the sole executor and trustee of her estate.

(d) Probate of the Will was granted to Mr Giurina on 13 September 2002.

(e) The Will provided that the Property be gifted to Mr Giurina (in the event that he did not survive Ms Nacinovich, the Property was to be gifted to Mr Giurina’s mother, Licia Giurina (‘Licia’), which, from the above, did not occur).

(f) As at the date of Ms Nacinovich’s death, she was the sole registered proprietor of the Property.

(g) By its municipal building surveyor, on 12 August 2019 the Council made an emergency order under s 102 of the Building Act 1993 (Vic) concerning the Property. The surveyor refused a request by Mr Giurina to cancel that order (‘Surveyor’s Decision’). Shortly thereafter, Mr Giurina appealed the Surveyor’s Decision to the Building Appeals Board in proceeding number BAB 451884 (‘BAB Application’). On 6 September 2019, the Building Appeals Board made a determination in favour of Council, dismissing the BAB Application and affirming the Surveyor’s Decision (‘BAB Determination’).

(h) In his capacity as executor of the estate of Ms Nacinovich (‘Estate’), Mr Giurina commenced judicial review proceedings against the Council seeking a review of the BAB Determination, in proceeding S ECI 2019 04286 (‘Judicial Review Proceeding’). Mr Giurina did not succeed in that proceeding and a costs order was made against him in his capacity as executor of the Estate (‘Executor’) in which costs were later fixed by the Costs Court in the amount of $46,915 by order made on 17 November 2021 (‘JRAL Costs Order’).

(i) The JRAL Costs Order was made in a proceeding commenced by the Council, proceeding number S ECI 2021 02603 against Mr Giurina as Executor (‘Taxation Proceeding’) on 23 July 2021 for the taxation of the costs ordered in the Judicial Review Proceeding.

(j) Mr Giurina, as Executor, sought leave in the Court of Appeal to appeal the outcome of the Judicial Review Proceeding, in proceeding S EAPCI 2021 0044 (‘Appeal Proceeding’). That proceeding was also unsuccessful and the Court of Appeal made a costs order against Mr Giurina in his capacity as Executor on 7 December 2021, fixed in the amount of $40,000 (‘Appeal Costs Order’).

(k) On or around 2 February 2022, Mr Giurina made two applications for orders for payment of the JRAL Costs Order and the Appeal Costs Order (together, the ‘Costs Orders’) by instalments. He swore ‘affidavits of financial situation’ in support of both applications. On 7 March 2022, the Supreme Court issued notices of refusal of order regarding both applications. The applications were dismissed on other grounds, but the Court noted in the reasons for refusal that Mr Giurina’s affidavits provided no clarity as to whether the assets set out in the affidavit are assets of the estate or personal assets, and that deficiency would need to be addressed in any further application.

(l) The Costs Orders were each separately the subject of warrants of seizure and sale against the Property issued on 30 March 2022 by the Council (‘Warrants’). Both of the Warrants were issued in the Judicial Review Proceeding.

(m) On 8 May 2022, Mr Giurina in his capacity as Executor issued a summons in the Judicial Review Proceeding seeking orders that the Warrants be cancelled or withdrawn (‘Warrants Application’).

(n) On 24 May 2022, I heard and determined the Warrants Application. I made declarations that Mr Giurina as Executor is the proprietor of the Property; that the Property is affected by the Costs Orders; and that for the purposes of s 52(2) of the TLA, the Property is affected by the Warrants (‘Warrants Declarations’). I also made orders that the Warrants Application be dismissed and that Mr Giurina, as Executor, pay the Council’s costs of and incidental to that application (‘Warrants Orders’). I gave oral reasons for that decision at the hearing on 24 May 2022, which were recorded in the transcript of that day (‘Warrants Ruling’).[4]
[4]The transcript of the hearing of the Warrants Application and of the Warrants Ruling is contained in Exhibit EG-1 to the Giurina Recusal Affidavit.

(o) On or around 30 May 2022, in his capacity as Executor of the Estate, Mr Giurina issued a new proceeding in the Supreme Court, proceeding number S ECI 2022 02430, in which he claims damages and other orders and declarations against the Council (‘Damages Proceeding’). On 4 July 2022, Mr Giurina as Executor filed an application in that proceeding seeking an urgent interlocutory injunction to prevent the sale of the Property (‘Injunction Application’). An amended statement of claim was filed in the Damages Proceeding on 12 July 2022 which sought to include a claim for orders that the Sheriff of Victoria (‘Sheriff’) be permanently restrained from enforcing the Warrants.

(p) On 14 July 2022, Justice Dixon J dismissed the Injunction Application and ordered that Mr Giurina, in his capacity as Executor of the Estate, pay Council’s costs of the application.[5]
[5]Giurina v Greater Geelong City Council [2022] VSC 396.

(q) On 20 July 2022, Kensington Lawyers lodged a caveat on the Property on behalf of Licia (‘Licia’s Caveat’) stating that Licia had a freehold interest in the Property on the grounds that she was a beneficiary under Ms Nacinovich’s Will, where probate had been granted and all debts in the Estate have been paid. A copy of Licia’s Caveat was sent to the Sheriff from Mr Giurina’s personal email address on 21 July 2022 in which it was stated that it was from Licia. The email referred to the Warrants and to the Property, stating that Licia had registered an absolute caveat over the Property and asserted that this prevents the sale of the Property.

(r) Licia’s Caveat was registered on the title to the Property on 25 July 2022 in dealing number AV871807L.[6]

(s) Following correspondence between Mr Broadhead and Kensington Lawyers on 22 and 26 July 2022, Licia’s Caveat was withdrawn.

[6]Exhibit BRB-1 to First Broadhead Affidavit, pp. 1-2.

The caveats which are the subject of this proceeding

The two caveats which the Council seeks to remove through this proceeding were both lodged by Mr Giurina in his personal capacity. These are described below.

The first caveat was lodged over the Property on 27 July 2022 by Mr Giurina in his personal capacity and registered on title on 29 July 2022 in dealing number AV897961E (‘First Caveat’). In the First Caveat, the caveator is named as Ermanno Giurina, the estate or interest claimed is ‘freehold estate’, the grounds of claim are ‘estoppel’ and the prohibition is listed as ‘absolutely’.

On the same day, Mr Giurina sent an email to the Sheriff’s office referring to the Warrants and to the Property, stating that he had placed an absolute caveat over the Property in his capacity other than Executor and asserted that this prevents the sale of the Property. He attached a copy of the First Caveat.

The second caveat was lodged over the Property on 5 August 2022 by Mr Giurina in his personal capacity and registered on title on 16 August 2022 in dealing number AV931274P (‘Second Caveat’). In the Second Caveat, the caveator is named as Ermanno Giurina, the estate or interest claimed is ‘freehold estate’, the prohibition is listed as ‘absolutely’, and the grounds of claim are stated as:

BENEFICIARY/IES UNDER THE WILL OF THE FOLLOWING DECEASED PARTY, WHERE PROBATE HAS BEEN GRANTED AND ALL DEBTS IN THE ESTATE HAVE BEEN PAID.
Parties
LINA NACINOVICH

On 8 August 2022, Mr Giurina sent an email to the Sheriff’s office referring to the Warrants and to the Property, stating that he had placed a further absolute caveat over the Property in his capacity other than Executor and asserted that this prevents the sale of the Property. He attached a copy of the Second Caveat.

The Warrants Application

It is necessary at this point to set out the relevant background regarding the Warrants Application filed on 8 May 2022.

Mr Giurina’s submissions at the Warrants Application

Mr Giurina submitted that the Warrants are ‘null and void and of no legal effect’. He submitted that the Warrants contain false information as they stated that Mr Giurina is the registered proprietor of the Property. He further submitted that he was not and he did not come within the definition of ‘registered proprietor’ in the TLA.

Mr Giurina submitted that the Property is not affected, for the purpose of s 52(2) of the TLA, by the Warrants as the Warrants were issued against Mr Giurina in his capacity as Executor and he is not the registered proprietor.

Mr Giurina submitted that the Council has not complied with r 68.04(3.1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) insofar that it has not provided evidence that Mr Giurina is the registered proprietor of the Property.

Mr Giurina submitted that although s 13 of the Administration and Probate Act 1958 vests the deceased’s property (including real property) in the executor, s 14 of that Act confers only the rights, and not the interests, of the property upon an executor. He submitted that, as such, he has no interest in the Property. In particular, Mr Giurina submitted that:

So even if it could be argued that I’m a beneficiary, I still don’t have any sort of proprietary interest, to be able to form the basis of these warrants, and the highest that you can go to is to that I have a right to have the [Estate] administered. But that’s more along the lines of a [chose] in action rather than any proprietary interest. So again, there’s no way that on that basis I could have any interest which could form the basis of these two warrants.[7]

[7]Transcript of hearing of Warrants Application, 17.15-23 at Exhibit EG-1, to the Giurina Recusal Affidavit.

During the hearing of the Warrants Application, the following exchange occurred between Mr Giurina and me after I asked whether the underlying litigation for the Judicial Review Proceeding concerned the Property:[8]

HER HONOUR: So the simple answer to my question is that the underlying litigation concerned matters to do with the land. The land is an asset of the estate. You are the executor of that estate under the will. The cost orders have been made against you in that capacity.

MR GIURINA: Right.
[8]Transcript of hearing of Warrants Application, 21.12-17 at Exhibit EG-1, to the Giurina Recusal Affidavit.

The Council’s submissions at the Warrants Application

The Council submitted, in response, that by operation of s 13 of the Administration and Probate Act 1958, Mr Giurina, in his capacity as Executor of the estate, became the proprietor of the Property upon the grant of probate on 13 September 2002, and that he has been entitled to make an application to become the registered proprietor under s 49 of the TLA since that time but has not done so.

The Council therefore submitted that the Court could make a vesting order under s 58 of the TLA and a direction to the Registrar of Titles that the plaintiff be registered as the proprietor of the Property.

The Council submitted that the grant of probate should be recognised as the vesting order under s 58 of the TLA, or alternatively, that a vesting order be made with or without the joinder of the Registrar to give effect to it.

Mr Giurina’s reply at the Warrants Application

Mr Giurina submitted, in reply to the Council’s submissions, that no interest has been transferred to him pursuant to s 49 of the TLA. He also said that, in his capacity as beneficiary under the Will, he holds the equitable interest in the Property, which is not a registrable interest.

Mr Giurina submitted that the manner in which the Estate is administered is a private matter and is of no business to the Council. He further submitted that he did not have an obligation to make an application under s 49 and the Administration and Probate Act 1958 did not stipulate a time by which an estate has to be fully administered.

Mr Giurina submitted that he is entitled to become the registered proprietor as specific beneficiary under the Will. He also submitted that, when the executor and beneficiary are the same person, the registration is usually done in one transfer to save on lodgement fees.

Mr Giurina submitted that he is not the sole beneficiary under the Will, that the estate has been administered properly and that any perceived delays in administering the Estate was a private matter and, in part, due to him investigating alleged missing funds from the Estate.

Mr Giurina submitted that as the administration of the Estate has not been finalised, he is therefore not a trustee or beneficiary of a trust, relying on Telford v Telford.[9] He therefore submitted that s 58 of the TLA did not apply as it relates to the vesting of property in a trustee or beneficiary of a trust, and not in an executor.
[9][2003] VSC 8 (‘Telford’).

Outcome of the Warrants Application

As noted above, having heard the Warrants Application on 24 May 2022, I made the Warrants Declarations and dismissed the application. The Warrants Declarations were as follows:

1.The Plaintiff is the proprietor of the Property.
2.The Property is affected by costs orders made against the Plaintiff in the following proceedings:
(a) S ECI 2021 02603 in the sum of $46,915.00; and
(b) S EAPCI 2021 044 in the sum of $40,000.
3.For the purposes of section 52(2) of the Transfer of Land Act 1958 (Vic), the Property is affected by the warrants.

Also, as noted above, my reasons for making the Warrants Declarations and dismissing the application were given ex tempore at the hearing. I will return to the contents of the Warrants Ruling later.

Evidence
The Council’s evidence

Much of the uncontroversial facts summarised above are taken from the First Broadhead Affidavit. In addition, I have summarised the relevant evidence relied upon by the Council below.

Mr Broadhead deposes that on 8 August 2022, he spoke with a manager at the Sheriff’s office who told him that the sale of the Property would be put on hold until the issues regarding the First and Second Caveats were resolved.

Mr Broadhead refers to an unrelated proceeding brought in Licia’s name, being an alleged dispute between Mr Giurina and a hospital regarding the discharge of Licia. In Giurina v Melbourne Health,[10] when referring to the then legal capacity of Licia, Justice Dixon J referred to a neuropsychology report prepared by Dr Natalie Genardini for use in related VCAT proceedings that had been commenced to remove Mr Giurina as the enduring guardian for Licia. The Court recorded Dr Genardini stating that Licia:[11]

… has a cognitive disability (likely dementia) that impairs her capacity to make informed and reasonable decisions about medical treatment, her care needs, and her living circumstances. She does not have insight or understanding of her considerable physical impairment and the implication of her ability to be cared for safely at home with only her son’s support.

[10][2018] VSC 143 (‘Giurina v Melbourne Health’).

[11]Giurina v Melbourne Health, [18].

His Honour subsequently ruled that Licia is a handicapped person under a disability who lacks capacity to bring that proceeding other than by a litigation guardian, a person who must act by a solicitor.[12]
[12]Giurina v Melbourne Health, [30].

Mr Broadhead also deposes that Mr Giurina’s conduct in lodging the First and Second Caveats and otherwise causing the Licia Caveat to be lodged[13] is a further example of his intention to obstruct the sale of the Property pursuant to the Warrants and to frustrate Council’s enforcement of the Costs Orders.
[13]The First Broadhead Affidavit does not otherwise explain this proposition. I gather that the evidence set out in the First Broadhead Affidavit about the findings in Giurina v Melbourne Health are relied upon to support the proposition that Mr Giurina was behind the lodging of Licia’s Caveat but note that no evidence other than this, and the email to the Sheriff in Licia’s name being sent from Mr Giurina’s email account, is proffered.

Mr Giurina’s previous statements/evidence regarding the ownership/status of the Property

The Council relies on a number of statements previously made/evidence given by Mr Giurina in respect of the ownership/status of the Property. These are set out below, drawn from the First Broadhead Affidavit.

In his affidavit sworn 25 August 2019 in support of the BAB Application, Mr Giurina stated, inter alia, that:

(a) He was ‘the Executor of the estate of Carolina … Nacinovich which is the proprietor’ of the Property.

(b) He ‘on behalf of the Estate … did not consent … [and] have not signed any acknowledgement of consent’ in relation to an inspection of the Property.

(c) He had removed fencing on behalf of the Estate.

(d) It was his belief that he, ‘on behalf of the Estate can again arrange a professional clean’ of broken sheeting on the Property.

(e) The Estate was paying for the erection of a cyclone fence around the perimeter of the Property.

In his affidavit sworn 11 September 2019 in support of the Judicial Review Proceeding, Mr Giurina stated that ‘there is restricted access to the property by the public with the erection of the cyclone fence around the perimeter of the property which the Estate is paying for’.

In his affidavit sworn 29 November 2019 in support of the Judicial Review Proceeding, Mr Giurina stated that:

(a) He ‘informed these representatives that the Estate would be prepared to continue paying for the temporary fence to secure the property and asked them to arrange for future invoices to be sent to the Estate’.

(b) He ‘would have told it to keep the temporary fencing and send all future invoices to me as Executor of the Estate’.

(c) He has ‘arranged for temporary fencing to again be installed around the property at a cost to the Estate’.

In his written outline of submissions in support of the Judicial Review Proceeding, Mr Giurina submitted that:

(a) The ‘Estate does not want to be in a situation where [Council] is pursuing its costs for the work done …’

(b) ‘Success in this proceeding will also form the basis for the Estate to pursue a claim for damages against [Council] in a subsequent proceeding’.

(c) ‘… in the case of an unadministered estate, s 13 of the Administration and Probate Act 1958 provides that the real estate of the deceased is vested in the Executor. As Executor of the Estate I have sole control over the property and power to admit and exclude entry of others on the property making me an occupier even though I may currently not reside at the property’.

At the hearing of the Judicial Review Proceeding, Mr Giurina made an oral submission on behalf of the Estate, stating that ‘[i]f I succeed then it forms the basis for the estate possibly to then initiate other proceedings seeking some form of compensation …’

In his reasons for decision in the Judicial Review Proceeding, Whelan JA referred to Council’s attempt to address the dilapidated state of the Property and said ‘Mr Giurina has applied his legal training and considerable effort, as the executor of an estate which has been under his administration for almost 20 years, to impeding the Council in its attempts to address that situation’.[14]
[14]Giurina v Greater Geelong City Council [2021] VSC 103, [149] (‘Judicial Review Reasons’). In respect of the legal training referred to, Whelan JA stated that Mr Giurina is admitted as an Australian lawyer but does not hold a practising certificate: Judicial Review Reasons, [5], [147]. See First Broadhead Affidavit, [9.8].

In his affidavit in the Appeal Proceeding sworn 10 July 2021, Mr Giurina stated that:

At the beginning of the administration of the Estate substantial funds were seemingly missing which led me to have discussions with Corio police and to requesting that an investigation be undertaken by the Commonwealth Bank of Australia which resulted in some funds being returned to the Estate. Further enquiries have been ongoing in an overseas jurisdiction. These steps were taken by me for the benefit of beneficiaries.

In his written submissions dated 26 August 2021 in the Taxation Proceeding, Mr Giurina submitted that:

(a) The ‘Respondent Estate would be prejudiced by having at this stage to arrange for payment of what to it is a considerable sum of money’.

(b) The ‘Respondent as executor of the Nacinovich Estate is required to act reasonably to protect the Estate and defend it against any actions’.

(c) Requiring the respondent to pay costs would be requiring it to ‘act unreasonably in the administration of the Estate … [and] would in effect be requiring the Respondent to breach his duties as Executor’.

(d) In an affidavit sworn by Mr Giurina on 10 September 2021, in an (unsuccessful) application made by him in the Appeal Proceeding seeking a stay of the Taxation Proceeding pending a decision in the Appeal Proceeding, Mr Giurina stated that:

It is my belief that if the Nacinovich Estate were required to pay any amount of costs at this stage a loan facility would have to be considered and entered into which would expose the Estate to interest costs which may not be necessary if it ultimately obtains a favourable outcome in the current leave application. It is my further belief that even if the Estate entered into a loan facility and paid any money over to [Council] prior to the final determination of the leave application and then succeeded on appeal, any monies paid back by [Council] would only relate to costs and would not cover the Estate’s own interest costs involved in obtaining any loan and therefore the Estate would be out of pocket’.

Correspondent regarding First Caveat

Mr Broadhead deposes that on 28 July 2022, he wrote to Mr Giurina asking that he either explain the facts giving rise to an alleged claim of estoppel as referred to in the First Caveat or otherwise withdraw it.

Mr Broadhead deposes that on 1 August 2022, he received a response from Mr Giurina in which he stated that:

(a) In 2003, in his capacity as Executor, he ‘assented to the disposition of the Property to [himself] as a specific beneficiary as specified under the Will’.

(b) Since 2003, there has also been ‘implied assent’, as Mr Giurina in his capacity as Executor has

‘not performed any executorial acts in relation to the property and all the outgoings in relation to the property such as rates, insurance premiums, mowing, fencing, painting of the exterior of the house and removal of rubbish have been paid by me out of my own pocket in my private capacity as specific beneficiary …

(c) The existence of assent has the effect that Mr Giurina’s interest in the Property is ‘perfected’ and the Property is

no longer part of the Nacinovich Estate and [Giurina] as executor [is] constructive trustee of the Property for [himself] as specific beneficiary and [is] entitled to possession of it as a specific beneficiary

(d) As Executor, he ‘can no longer deal with the Property as it is no longer part of the Nacinovich Estate’.

(e) Specifically,

the relevant costs orders were made against [Giurina in his] capacity as Executor and therefore [he is] estopped from using the property in that capacity to satisfy the costs order because since giving the assent [he] no longer [has] any rights or powers over the Property in his capacity as Executor

(f) Further,

Any entity such as the Sheriff who relies on [Giurina’s] capacity as Executor to seize the property is estopped from doing so because the property is no longer part of the Estate

(g) Licia also has a caveatable interest in the Property, and if Mr Giurina was to die, his interest would go to her as his next of kin. As such, Mr Giurina says that Licia has a ‘contingent reversionary interest in the Property’ and she ‘reserves the right to lodge a caveat to protect that interest’.

The First Giurina Affidavit
The Will

Upon Ms Nacinovich’s death, the Will gave, devised, and bequeathed ‘[her] land and house (including all chattels therein) situated at 120 Elizabeth Street, Geelong West in the State of Victoria to ERMANNO GIURINA … for his own use and benefit absolutely’.

The Will also gave, devised, and bequeathed the rest of her Estate to her trustee upon trust to sell, call in and convert into money to settle the Estate’s debts and to hold the residue upon trust for Ms Irma Locher and Ms Ida Cosul for their own use and benefit absolutely and in equal shares.

Mr Giurna says that he believes that the Will only empowers him to pay the usual debts, funeral and testamentary expenses from the residuary and that he did not have power to sell the Property in his capacity as Executor.

The assent

Mr Giurina deposes that, as the Estate did not have any liabilities at the time of probate and after all due enquiries were made, on 11 October 2003, in his capacity as Executor, he assented to the disposition of the Property to himself as specific beneficiary under the Will. He says he made a note of this asset to himself, a copy of which he exhibits (‘Assent’),[15] which is reproduced below:

[15]First Giurina Affidavit, [8]; Exhibit EG-1, p. 11.

Mr Giurina deposes that, since 11 October 2003, as a specific beneficiary, he believed that he presently had or in the future would acquire an interest in the Property. He also deposes that since 11 October 2003, as Executor of the Estate, he knew or intended that he, as specific beneficiary, would hold that belief or expectation and would act or abstain from acting in reliance on it.

Mr Giurina deposes that since 11 October 2003, he believed that he had not performed any executorial acts and he has since been making payments for the outgoings of the Property in his capacity as a specific beneficiary. He deposes that as at 28 October 2022, the payments are as follows:

(a) Rates, valuation and charges on an approved instalment plan of $250 per month.

(b) Property insurance of $35.17 per month.

(c) Gardening services of $110 every six weeks.

(d) Fencing costs of $101.20 per month.

(e) Costs to maintain the buildings and land at the Property.

Mr Giurina deposes that the Estate has not paid for any of these costs.

Mr Giurina’s previous statements/evidence regarding the ownership/status of the Property

In response to the First Broadhead Affidavit, which I have summarised above at paragraphs 41 to 43, Mr Giurina deposes that any formal actions in respect of the Property are taken by him as Executor because the title is in the name of Ms Nacinovich, for example, making arrangement for professional cleaning.

However, Mr Giurina then deposes that any payment in relation to the Property was made by him in his capacity as specific beneficiary. In particular, Mr Giurina deposes that the payment for the cyclone fence which was invoiced by the Council was paid by him in his capacity as specific beneficiary despite the invoice being addressed to the Estate. Mr Giurina deposes again that, despite what he said in his affidavit sworn on 29 November 2019 (referred to in paragraph 44 above), he paid for the fencing in his capacity as specific beneficiary.

Mr Giurina deposes that on 18 June 2019, the Council had filed charges against him for graffiti that was on the Property (‘Graffiti Proceeding’). He deposes that the matter was settled by execution of a deed and he had arranged for the removal of graffiti on the Property which was again paid for by him in his capacity as specific beneficiary.

Mr Giurina deposes that the Property has not been vacant since about 2003, that after the Assent, he had resided at the Property for a period until about 2008. He further deposes that, as of 28 October 2022, he was still responsible for the outgoings of the Property and he attended the Property at least once a month. He also deposed that he intends to use the Property as a residence for himself or for his family.

Mr Giurina deposes that he has retained the role of executor to ‘pursue certain matters involving possible fraud on Ms Nacinovich which in [his] belief could result in some monies being recouped to the benefit of [the] residuary beneficiaries’. Mr Giurina deposes that therefore the Estate is yet to be fully administered but the Property is no longer part of the Estate.

Mr Giurina deposes, by reference to the transcript of the hearing of the Warrants Application, that my comments and the Court’s declarations on 24 May 2022 did not involve any factual enquiry in relation to the Estate and the question of his interest was not agitated. In particular, Mr Giurina deposes that the declarations ‘did not refer to [his] capacity in relation to [his] interest in the Property nor did they refer to the Property being allowed to be dealt with for the purposes of satisfying any cost orders’.

Mr Giurina deposes that his statement set out at paragraph 44 above was dealing with the situation where the Estate as the formal title holder did not want the Council to pursue its costs under s 121 of the Building Act 1993 (Vic) for the demolition work. He deposes that the pursuit of any claim for damages if he were successful would have been commenced by him in his capacity as Executor, since the legal title is held by Ms Nacinovich, and he would have held any award of damages on trust for himself. He further deposes that these submissions did not affect his prima facie case in justifying the maintenance of the two Caveats.

Mr Giurina deposes that his statement set out at paragraph 44 above was in relation to his functions as Executor of the Estate and it would be unreasonable to arrange for the payment of any costs when the rights of the parties had not been finally determined and with the damages proceeding afoot.

Mr Giurina deposes that Giurina v Melbourne Health, summarised above at paragraphs 38 and 39, is irrelevant to the current application as the case ‘did not adjudicate anything on the merits’ and that it was his belief that the Council knows that Licia is in control of her own affairs.

The Council’s evidence in reply

In the Second Broadhead Affidavit, Mr Broadhead refers to the Giurina Written Outline, in particular the submission by Mr Giurina that the Council:

was aware of the assent (both in writing and implied) and was aware in substance I had disposed of the Property to myself in my personal capacity as it … brought proceedings against me in my personal capacity to enforce the Local Law and subsequently settled in that capacity between the parties.[16]

[16]Giurina Written Outline, [49].

Mr Broadhead deposes that in the Graffiti Proceeding, the statements made by Mr Giurina in his letter to Daniel Fullerton dated 18 June 2019 and in his written submissions dated 2 June 2019 (‘Graffiti Submissions’) did not inform the Council explicitly or implicitly about the assent in 2003.

Mr Broadhead deposes that in the Graffiti Submissions, Mr Giurina stated, inter alia, that:

(a) the land is part of the Estate of Ms Nacinovich and the ATO advised him that if the land was rented out, the rent would go to the Estate.

(b) The ATO has advised Mr Giurina that as executor, he is a trustee and not an owner.

(c) He was not registered as a proprietor in his capacity as executor under s 49 of the TLA.

(d) He does not have any legal or equitable title to any asset as the Estate is still in administration.

Mr Broadhead deposes that since the commencement of the BAB application, he has not been informed of the Assent ‘until receiving the materials from Giurina in connections with the two latest caveats’. Mr Broadhead also deposes that the Council has instructed that it was not aware of the Assent until ‘the receipt of [Mr Giurina’s] latest affidavit’.

Mr Giurina’s evidence in reply to the Second Broadhead Affidavit

Mr Giurina deposes that his main contact during the Graffiti Proceeding was Mr Robert Page and that during the period 2018 to 2019, he had various conversations with Mr Page and other officers.

Mr Giurina deposes that he believes the following:

(a) The second Broadhead affidavit acknowledges that the Graffiti Proceeding was brought against him in his private capacity.

(b) The officers, and in particular Mr Page, were aware that he had in substance disposed of the Property to himself as specific beneficiary.

(c) The rent would be given to the executor as a matter of formality to be held on trust for himself as specific beneficiary.

(d) The Council is aware that Mr Giurina had performed all his executorial functions in relation to the Property and had disposed of the Property to himself.

Mr Giurina deposes that in relation to the statement he made in the Graffiti Proceedings, set out at paragraph 70 above, stating that he was not registered as a proprietor in his capacity as Executor under s 49 of the TLA, it was because ‘the Estate would appear to have been the “owner” for the purposes of the Local Law definition’.

Mr Giurina deposes that he had indicated to the Council he was responsible for the payments of the outgoings of the Property in his capacity as specific beneficiary because of the Assent. Mr Giurina further deposes that the Council’s knowledge of his payment of the outgoings meant that it is aware that there was, at the very least, implied assent.

Mr Giurina deposes that he was under no obligation to inform Mr Broadhead of the Assent.

The Recusal Application

As noted above, after hearing the Recusal Application at the commencement of the hearing on 18 November 2022, I stated that I would not recuse myself and would provide reasons for that decision with my reasons regarding the Caveat Removal Application.

Set out below are my reasons for refusing the Recusal Application.

General principles applicable to the Recusal Application

The issue raised in this case by the Recusal Application is whether the apprehended bias rule applies, the apprehension being of prejudgment. The “apprehension feared is that, having reached a conclusion as to certain matters on the Warrants Application, I might not be open to persuasion towards a different conclusion on those matters on the hearing and determination” of the Caveat Removal Application.[17]
[17]Bolitho & Anor v Banksia Securities Limited & Ors (No 19) [2022] VSC 761, [4] (‘Bolitho No 19’); British American Tobacco Services Australia Ltd v Laurie (2011) 242 CLR 283, 322 (‘BATSA v Laurie’).

The objective test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[18] That principle gives effect to the requirement that justice should both be done and be seen to be done.[19] The principle for apprehended bias was stated in Ebner, as follows:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
…
Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[20]

[18]Johnson v Johnson (2000) 201 CLR 488, [11] (‘Johnson’); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] ‘Ebner’.

[19]Ebner, [6].

[20]Ebner, [6], [8].

Mahoney JA in Australian National Industries Ltd v Spedley Securities Ltd (in liq) stated that, subject to qualifications and exceptions, there are four matters to consider regarding to the prejudgment principle:[21]

(a)       the disqualification of a judge for apprehended pre-judgment depends on form rather than substance;
(b)       whether there is an unacceptable appearance of pre-judgment is to be decided, not according to likelihood, but according to possibility;
I         the case is to be judged, not according to what the court and the parties know, but according to the impressions of a lay person who does not know the facts; and
(d)      there will be an unacceptable appearance of pre-judgment if the judge has previously dealt with the issue of fact or credibility which is before him in the instant case.
[21](1992) 26 NSWLR 411, 438 (‘Australian National Industries’).

Mr Giurina’s submissions

Mr Giurina submits that one of the key issue for the Caveat Removal Application is whether the Property remains part of the estate. He submits that, at the Warrants Application hearing, I had made a number of conclusions and comments which indicated that the Property was part of the Estate and as such, a fair-minded lay observer might reasonably apprehend that I have prejudged matters to be determined in the Caveat Removal Application.

Mr Giurina submits that my “comments and views” on the Warrants Application giving rise to the apprehension of pre-judgment are as follows (with Mr Giurina’s emphasis added):

(a) “[A]s at 18 March 2022, the Property remained registered in the name of the deceased and remains property of the Estate."[22]
[22]Transcript of hearing of Warrants Application, T27.1-3, Exhibit EG-1 to the Giurina Recusal Application.

(b) “It is abundantly clear, it seems to me, from the definition of proprietor contained in the Transfer of Land Act that the plaintiff is the proprietor of the land. I think that is inarguable.”[23] Mr Giurina does not cite the two sentences preceding this, which were “[i]n my view, the plaintiff is incorrect about the operation of sections 13 and 14 of the Administration and Probate Act. The position is as the defendant has put it: the plaintiff became the proprietor of the Property conferred with the rights, duties and interest in the property upon the grant of probate.”[24]
[23]Transcript of hearing of Warrants Application, T31.18-22, Exhibit EG-1 to the Giurina Recusal Application.
[24]Transcript of hearing of Warrants Application, T31.13-18, Exhibit EG-1 to the Giurina Recusal Application.

(c) Mr Giurina is … “the proprietor of the land both by virtue of the Administration and Probate Act and the fact that the property vested in him as executor and by virtue of the definition of proprietor in the Transfer of Land Act.”[25]

(d) “I am satisfied that it is appropriate to make such orders and declarations as necessary to allow the defendant to enforce the Court's orders against the plaintiff in the capacity in which he is both the judgment debtor and the proprietor of land“. Mr Giurina ends the quote there, but the rest of the sentence was “amenable to a warrant of seizure and sale to satisfy the judgment.”[26]

(e) “In my view, it would be a triumph of form over substance to permit the plaintiff’s circularity of reasoning to prevent the judgment creditor, being the defendant, enforcing its judgment debts, being the cost orders, in circumstances where the plaintiff is the proprietor of the land, the land is an asset of the estate, to which he has been appointed executor …”. Mr Giurina ends the quote there, but the rest of the sentence was “and where that land is, at least in part, part of the subject matter of the underlying litigation giving rise to the costs orders.”[27]

[25]Transcript of hearing of Warrants Application, T32.12-15, Exhibit EG-1 to the Giurina Recusal Application.

[26]Transcript of hearing of Warrants Application, T34.12-18, Exhibit EG-1 to the Giurina Recusal Application.

[27]Transcript of hearing of Warrants Application, T34.27 - 35.5, Exhibit EG-1 to the Giurina Recusal Application.

Mr Giurina further submits that the Court’s declaration, as set out in paragraph 34 above, that he is the proprietor of the Property, also shows pre-judgement. He submits that this is because the declaration was made even though the Warrants Application was brought by him in his capacity as the Executor and that no relevant evidence was tendered by the parties for me to come to such a final conclusion.

Relying on Kwan v Kang & Ors,[28] Mr Giurina submits that if a judge in the previous hearing has made comments or expressed views in such a way that indicates that they have come to a final conclusion on a significant issue when further evidence is still to be led and final addresses are still to be made, the likely consequence is that the judge concerned will have to disqualify himself or herself.
[28]Kwan v Kang & Ors [2003] NSWCA 336, [86] (‘Kwan’).

Mr Giurina submits that Mr Broadhead’s reliance on my comments and declaration from the Warrants Application shows that Mr Broadhead believes I have prejudged whether the Property remains part of the estate. Mr Giruina further submits that if Mr Broadhead, who is a legal professional, had come to this conclusion, then a fair-minded lay observer would even more so come to a similar conclusion.

Mr Giurina submits that I have already established a precedent in Goldberg by recusing myself in that matter.[29]Mr Giruina submits that in Goldberg:
[29]Goldberg v Campbell & Shaw [2022] VSC 24 (‘Goldberg’).

(a) it was a proceeding filed by the Plaintiff, in his capacity as the executor of the estate of the deceased, seeking, amongst other things, an order for the removal of the caveat from the title to the property pursuant to s 90(3) of the TLA.

(b) In my judgment delivered on 8 October 2021,[30] I determined that the caveat is to be removed from the title and made certain statements which include that it was ‘highly likely’ that the second defendant has a prima facie case to a freehold estate on the grounds of a constructive trust arising from the doctrine of proprietary estoppel.

(c) I made orders on 29 October 2021 listing the hearing of the second defendant’s application for amendment of the caveat before another Associate Judge after the plaintiff raised the possibility of an application being made that I recuse myself for apprehended bias as a result of the statements mentioned above.

[30]Goldberg v Campbell & Shaw [2021] VSC 647 (‘Goldberg Warrant Judgment’).

The Council’s submissions

The Council submits that it is simply not true that there had been no evidence presented to the Court to make the finding that Mr Giurina is the proprietor of the Property and he rejects what Mr Giruina has claimed the Council had said.

The Council submits that what it said at the hearing of the Warrants Application was that the nature of that application was interlocutory and as such the Court was not in a position to test the evidence even though the evidence was before the Court.

The Council submits that the Court can be directed to s 4 of the TLA and the definition therein to be satisfied that Mr Giurina, in his capacity as Executor of the Estate, is the proprietor of the Property.

Consideration

The fair-minded lay observer is taken to be aware of the nature of the Warrants Ruling, the context in which it was made, and to have knowledge of the circumstances leading to this application.

Therefore, the fair-minded lay observer would understand that the comments that Mr Giurina relies on at paragraph 83 above are not mere obiter dicta. Rather, as the Council has correctly submitted, they were findings that were open to me to make. My findings were based on the evidence before me at that time, such as the affidavits and title search filed, and the relevant sections of the Administration and Probate Act and the TLA. The fair-minded lay observer would also understand that my findings explain why the Court made the declaration it did on 24 May 2022. These were findings and not merely “comments and views”, as Mr Giurina has characterised them. These were findings that were open on the evidence to make and which were a necessary aspect of considering whether the Property was affected by the Warrants, which was part of the key question for the Warrants Application.

Mr Giurina’s submissions in respect of the Recusal Application are based on a fundamental misunderstanding of the concept of prejudgment. The issues before me in the Warrants Application were different to those before me as part of the Caveat Removal Application. At no time during the Warrants Application was there any mention or contention by either party, either in evidence or in submissions, that the Property was no longer part of the Estate. The key question in the Warrants Application was the validity of the Warrants, the answer to which lay in whether the Property was affected by the Warrants. It was a necessary part of dealing with that application that I analyse whether the Costs Orders, having been made against Mr Giurina in his capacity as executor of the Estate, were enforceable against the Property such that the Property was affected by the Warrants.

That is what I did. The findings I made were open to me and I note that no appeal was made of the orders and declarations made on the Warrants Application. That is not prejudgment. It is not a situation where comments were made, possibly in passing, on an issue that did not then fall for determination but which later would do so. Thus Kwan, in terms of the submission made by Mr Giurina at paragraph 85 above, does not apply here.

I should point out, for the sake of completeness, that the comments made at the hearing as to the sufficiency of the evidence before me at that time concerned only the question of whether the Estate had been fully administered. The Council contended that Mr Giurina was a trustee in respect of the Property such that it could rely on s 58 of the TLA for a vesting order, however Mr Giurina disputed this. I did not rely on this as a basis for making my decision or the declarations.

Even if it were prejudgment, rather than a previous ruling or finding, there is no reason for the reasonable lay observer to apprehend that I am unable to consider the Caveat Removal Application on its merits and on the basis of the evidence and submissions made on that application. As J Dixon J accepted in Bolitho No 19:

The touchstone of apprehended bias on the basis of prejudgment is not the fact that the judge may have formed a view, but rather that the judge’s mind is not open to persuasion by evidence or argument.[31]

[31][20], referring to Minister for Immigration and Multicultural Affairs v Gia Legeng (2001) 205 CLR 407, 513-2 [71]-[72]; Elliott v Lindholm (2020) 62 VR 307, 320 [52].

Furthermore, even if it turns out that I ultimately came to the same conclusion in this proceeding, reasonable anticipation of a particular outcome by a reasonable observer is not the test. French CJ observed in BATSA vLaurie:

[T]he fact that a judge who has made a finding of fact adverse to a party on particular evidence is likely to make the same finding on the same evidence, is not of itself indicative of bias. It could be indicative of consistency subject to the judge having an open mind when it came to argument about the effect of the evidence.[32]

[32](2011) 242 CLR 283, 303 [39] .

Therefore, I do not accept that my findings and declaration shows prejudgment of a type which gives rise to an apprehension of bias. This also deals with Mr Giurina’s submission about the Council’s reliance on my findings and declarations.

It is now convenient to turn to Mr Giurina’s submission that I have established a precedent in Goldberg based on the reasoning above. In Goldberg, my statements which indicated that it was ‘highly likely’ that the second defendant has a prima facie case to a freehold estate on the grounds of a constructive trust arising from the doctrine of proprietary estoppel were not findings. It was therefore not part of the orders I had made 14 October 2021 and is mere obiter.

In that context, it is reasonable that the lay observer may conclude that my comments were made in such a way that indicates that I had come to a final conclusion on a significant issue when further evidence was still to be led and final addresses were still to be made. In that instance, Kwan applied.

Therefore, the decision in Goldberg can be distinguished from this Application.

The Caveat Removal Application
General principles applicable to the Caveat Removal Application

Section 90(3) of the TLA permits any person adversely affected by a caveat, lodged under s 89 of the TLA, to bring proceedings in a court against the caveator for the removal of the caveat. Section 90(3) also empowers a court dealing with such an application to make such orders as the court thinks fit.

The legal principles regarding applications pursuant to s 90(3) of the TLA for the removal of a caveat are well established. Derham AsJ has summarised the applicable principles in AAGG Developments Pty Ltd v Saafin Constructions Pty Ltd as follows:[33]
[33][2020] VSC 768 (‘Saafin’), [8]–[9].

The applicable principles are not in dispute. In short summary they are:
(a)The application is in the nature of a summary procedure analogous to the determination of interlocutory injunctions. The procedure is consequently interlocutory in substance, even though it may give rise to a final order.
(bThe Court’s power under s 90(3) of the TLA is discretionary.
(c)The caveator bears the onus of establishing that there is a prima facie that it does have the estate or interest in land as claimed.
(d)The prima facie case test is often used interchangeably with whether a serious question to be tried is established. The prima facie case test is to be preferred. That does not mean that the Caveator must show that it is more probable than not that at trial the plaintiff will succeed. The Caveator must show that they have a prima facie case with sufficient likelihood of success to justify the maintenance of the caveat, and the preservation of the status quo pending trial.
(e)If the caveator establishes a prima facie case to be tried in relation to the estate or interest claimed, the caveator must further establish that the balance of convenience favours the maintenance of the caveat until trial.
(f)There is a relationship between the strength of the case in establishing a prima facie case to be tried and the extent to which the caveator must establish the balance of convenience favours the caveator; the stronger the prima facie case, the more readily the balance of convenience might be satisfied. It is sufficient that the caveator show a sufficient likelihood of success that, in the circumstances, justifies the practical effect which the caveat will have on the ability of the registered proprietor to deal with the property in question in accordance with its normal proprietary rights.

An application to remove a caveat involves two steps. First, the Caveator must establish that there is a prima facie case - there is a probability on the evidence before the Court that the Caveator will be found to have the asserted legal or equitable rights or interest in the land. Second, having done so, the Caveator must establish that the balance of convenience favours the maintenance of the Caveat on the title until trial and that probability is sufficient to justify the practical effect which the caveat has on the ability of the registered proprietor to deal with the property in question in accordance with their normal proprietary rights.

I have followed and applied these principles in coming to this decision, noting that Mr Giurina bears the onus of establishing both a prima facie case to the interests claimed in the Caveats and that the balance of convenience favours their maintenance on the title to the Property.

Question of Council’s standing to make the Caveat Removal Application
Mr Giurina’s submissions

Mr Giurina submits that s 90(3) of the TLA is an alternative to s 89A of the TLA in removing a caveat. He submits that the person adversely affected by the caveat for the purposes of s 90(3) must be a person with an interest in the respective land as referred to in ss 89A(1) and 89A(3). Mr Giruina submits that Delma Investments Pty Ltd v Shillito supports this contention.[34]
[34][1971] VR 422, 443 (‘Delma’).

Mr Giurina submits that the Council therefore has the onus of first proving that it has standing to bring the Caveat Removal Application by showing that it has an interest in the Property and is a person who is adversely affected by the two caveats he has lodged.

Mr Giurina submits that the Council is a mere unsecured judgment creditor and a judgment debt, even if followed by a warrant of seizure and sale, does not create a proprietary interest in the land which is the subject of the warrant.

The Council’s submissions

The Council accepts that s 90(3) of the TLA acts as an alternative to s 89A of the TLA. The Council submits however that neither Delma nor the wording of s 90(3) of the TLA support the conclusion that the person adversely affected by the caveat in s 90(3) must be a person with an interest in the land as referred to in s 89A.

The Council submits that s 90(3) is an alternative provision whereby, inter alia, a person who does not have a direct registerable interest in the land is able to make an application to remove a caveat because the person is adversely affected by the caveat.

The Council submits that it is clearly adversely affected by the Caveats by reason of the Warrants, as the Warrants cannot be executed if the Caveats remain on the Property.

The Council submits that it is not asserting an interest in the Property.

Consideration

I do not accept Mr Giurina’s submission that the Council lacks standing to bring the Caveat Removal Application. His submission as to how s 90(3) of the TLA operates is misconstrued.

As the Council has submitted, s 90(3) only requires an applicant to be 'adversely affected' by any caveat. On the basis that the Council has a valid and enforceable warrant enabling the Sheriff to sell the Property in order to satisfy the Costs Orders, I am satisfied that it is 'adversely affected' by the maintenance of the Caveats as the sale is unable to be effected while the Caveats remain on title.

Mr Giurina’s submission that the Council does not have a proprietary interest in the Property is correct, as is his submission that a judgment creditor does not have an interest in the Property by virtue of the judgment debt or a warrant for its enforcement. However, that takes him nowhere, as it is irrelevant to the issue of standing for the purposes of s 90(3) of the TLA.

Therefore, properly construed, the Council has standing under s 90(3) of the TLA to make the Caveat Removal Application.

The First Caveat
Mr Giurina’s submissions
Prima facie case

Mr Giurina submits that the First Caveat was lodged on the ground of proprietary estoppel as he is both the Executor and the specific beneficiary named in the Will.

Mr Giurina submits that he has to establish the following elements for his proprietary estoppel claim:

(a) Mr Giurina, as Executor, has made some form of representation that he conferred to himself, as specific beneficiary, an interest in the Property.

(b) Mr Giurina, as specific beneficiary, believed or expected that he presently had or in the future would acquire an interest in the Property.

(c) Mr Giurina, as Executor, knew or intended that himself, as specific beneficiary, would hold that belief or expectation and would act or abstain from acting in reliance on it.

(d) Mr Giurina, as specific beneficiary, acted to his detriment and changed his position in reliance on his expectation or belief.

(e) The detriment is such that it would be unconscionable for Mr Giurina as Executor to depart from his representation.

Mr Giurina submits that as Executor he had assented to the disposition of the Property to himself as specific beneficiary in 2003 which amounted to a representation to himself that he has an interest in the Property. He further submits that there is implied assent since October 2003 as he has paid all of the outgoings of the Property in his capacity as specific beneficiary and he had allowed this as Executor.

Mr Giurina submits that the Council knew of the Assent or at the very least knew of the implied assent, as summarised above at paragraph 75.

Mr Giruina submits that, as specific beneficiary, he believed that he presently had or in the future would acquire an interest in the Property, and that, as Executor, he knew that he as specific beneficiary would hold that belief and would act or abstain from acting in reliance on it.

Mr Giurina submits that he, as specific beneficiary, has acted to his detriment and changed his position in reliance on this expectation as he had assumed responsibilities over the outgoings of the Property and paid for them.

Mr Giurina submits that it would therefore be unconscionable for him as Executor to depart from the representation as constituted by the Assent. Mr Giurina submits that he can no longer deny, as Executor, that the property is not part of the Estate. He submits that this establishes a prima facie case of proprietary estoppel to justify the maintenance of the First Caveat.

Mr Giurina submits that by assuming responsibility for the outgoings of the Property, a constructive trust arose between his capacities as Executor and specific beneficiary. He submits that therefore he could lodge a further caveat based on constructive trust. It was unclear whether Mr Giurina contends that this constructive trust argument was a basis for the interest claimed in the First Caveat, or whether it was something separate, or both.

Balance of convenience

Mr Giurina submits that he has a strong prima facie case, and therefore the balance of convenience favours the maintenance of the caveat. He contends that the balance of convenience is readily satisfied.

Mr Giurina submits that his intention to live in the Property or for his family to do so, as deposed to in his affidavit, remains true and correct which also weighs the balance of convenience in his favour. He further submits that he would lose the benefit of the expenditures he has undertaken for the Property if it was sold.

Mr Giurina submits that the injustice would be greater to him if it was later found to be wrong that the Caveats were removed and the Property sold as compared to the injustice the Council would face.

The Council’s submissions
Prima facie case

The Council submits, that it was not aware of the Assent and that there is no implied assent.

The Council says that it is difficult to directly impeach the veracity or authenticity of this self-serving note, that is the purported Assent, the circumstances in which it was written, and the manner it is now presented to the Court. It says it has not seen it before but, because of its contradictory nature, the Council does not place the authenticity of it in issue. The Council says that in light of the history of these proceedings, it is almost unfathomable that it would not have come to light earlier and that, had it been a document available to the Court or to the Council, the nature of the numerous earlier hearings would have been vastly different.

Further, the Council submits that the Court should not accept that the Assent occurred, due to the following:

(a) Mr Giurina was a party in all of the proceedings, that gave rise to the costs orders, and the Warrants, that he commenced in his capacity as the Executor of the Estate.

(b) Mr Giurina appeared in those proceedings as Executor of the Estate.

(c) The Costs Orders are against Mr Giurina in that capacity.

(d) The Certificate of Title identifies the sole registered proprietor of the Property as Ms Nacinovich.

(e) Mr Giurina adopted that fact of registration as his primary argument previously before this Court to assert that Lina was the proprietor of the Property, and not the Estate.

(f) The Court made a declaration that the Estate is the proprietor of the Property and further, that the Property is affected by the Costs Orders.

(g) Mr Giurina did not appeal that declaration.

(h) Mr Giurina has variously and consistently stated that he is the Executor of the Estate which is the proprietor of the Property.

(i) Mr Giurina has not made an application at any time in the past 20 years for either the Estate or himself to be registered as the proprietor of the Property as if he had, he would be recorded as such in the Register.

(j) If Mr Giurina did truly assent the Property to himself, then there would be no logical reason or explanation for it not to be registered in his name.

(k) In the related proceedings that gave rise to the Costs Orders, this Court has repeatedly recorded and found over no objection from Mr Giurina that Mr Giurina is the Executor of the Estate whose assets include the Property.

(l) Mr Giurina has, until now, never expressed the position that the Estate is not the proprietor of the Property other than asserting it was not the registered proprietor.

(m) Mr Giurina has, until now, never asserted that, as Executor, he can no longer deal with the Property.

The Council submits that even if there was Assent, this Court has acknowledged that the debts were incurred by the Estate by issuing the Cost Orders and Warrants. The Council submits that therefore Mr Giurina has no basis to lodge the First and Second Caveats.

The Council says that the issue to be determined is whether this alleged turn of events, being the Assent, establishes that Mr Giurina personally has a prima facie case that he has an absolute interest in the Property. In this regard, the Council contends that Mr Giurina falls well short of establishing any likelihood of success, and that the true purpose of this novel and new argument and the lodging of the caveats is to avoid paying the proper debts of the Estate which have been incurred, in essence, by his own fruitless litigation tactics.

Balance of convenience

The Council submits that the weaker the prima facie case, the more readily the balance of convenience will favour the Council.

The Council submits that if one accepts the assertions made by Mr Giurina that he, as the Executor of the Estate, had no right to deal with the Property, then this places Mr Giurina as specific beneficiary in a direct and irresolvable conflict with himself as Executor. The Council submits that the only way to resolve that conflict would be to change the Executor, who may then take necessary action against Mr Giurina.

The Council submits that if the Court were to appoint a new Executor to resolve the conflict, the interests of the Estate might be properly managed including the payment of all its debts.

Consideration

The Council has invited this Court to find that Assent did not occur but has submitted that it is difficult to directly impeach the veracity or authenticity of the Assent, despite the unusual circumstances the Council has highlighted.

Be that as it may, since the First Caveat is heavily reliant on the Assent, the strength or otherwise of Mr Giurina’s case for the claim asserted in the First Caveat necessarily requires consideration of the Assent.

I find it inherently implausible that the Assent did occur and that, if it did, it has the effect contended for by Mr Giurina (including his estoppel claim).

The existence of the Assent and its alleged effect is contradictory to many other statements he has made, either in affidavits or submissions, in the numerous proceedings involving him and/or the Estate, and the Council. The litany of prior inconsistencies are set out clearly in the First Broadhead Affidavit, as summarised above, and there is no need for me to repeat those here. His prior statements and evidence are clear and unequivocal and I do not accept the attempts made by Mr Giurina to explain them away. By way of example, Mr Giurina’s earlier evidence summarised at paragraph 42 above is completely inconsistent with the Assent and the case he now seeks to propound.

Significantly, the Costs Orders which provide the foundation for the Warrants were made in or in connection with the Judicial Review Proceeding and the Appeal Proceeding, both of which were commenced by Mr Giurina in his capacity as Executor of the Estate. The subject of the Judicial Review Proceeding was a building order issued by the Council in respect of the Property. Mr Giurina has not provided any satisfactory explanation for the obvious inconsistency between the position he adopted then compared with the position he adopts now.

Also significantly, the case now advanced by Mr Giurina is completely contradictory to the position he took in the Graffiti Proceeding, as set out at paragraph 70 above. I infer that it suited Mr Giurina to portray the Property as part of the Estate in that proceeding, whereas it does not so suit him here.

His previous evidence and statements lead me to conclude that there is not a prima facie case to the interest claimed in the First Caveat based on an estoppel derived from the Assent.

Rather, it seems to me that Mr Giurina relies on the Assent in yet another attempt to avoid payment of the Costs Orders and to avoid the Property being sold to satisfy debts of the Estate. The timing of the lodging of the First Caveat is instructive. It was lodged straight after Licia’s Caveat was withdrawn. It is tolerably clear that Mr Giurina was involved in the lodging of Licia’s Caveat and dealing with it, given both the correspondence in respect of it (the email from his email address to the Sheriff’s Office after it was lodged) and Licia’s evident incapacity. I doubt whether there was a proper basis for the interest claimed by Licia in her caveat, although I need not make any findings on that. What is clear, however, is that the attempt to prevent the sale of the Property via Licia’s Caveat failed and then immediately afterwards Mr Giurina lodged the First Caveat, with the same aim.

Even if Mr Giurina can establish the genuineness of the Assent which, as I have indicated, I have very strong doubts about, that does not necessitate a conclusion that he has a prima facie case to the interest claimed in the First Caveat. That is because he still would have to establish all of the elements of estoppel. His arguments based on estoppel are so circular and illogical that I consider it exceedingly unlikely that he would be able to do so.

The same concerns arise in respect of Mr Giurina’s arguments about the implied assent. His evidence now that he paid all outgoings and costs connected with the Property is inconsistent with his previous evidence and statements, as set out in the First Broadhead Affidavit.[35] In a number of instances, his current evidence in this regard does not rise above mere assertion. For example, Mr Giurina’s reliance on at least some of the documents attached to his affidavits as purported evidence that he paid the outgoings do not go that far. Just because an invoice is addressed to him, without saying ‘as executor’ or some such, does not mean that it was addressed to him in his personal capacity or that he paid for it from his own resources.
[35]For example, see paragraph 44 above.

It is also difficult to reconcile Mr Giurina’s contention that, since 2003, he has not performed any executorial acts in relation to the Property (see paragraph 51(b) above) with his earlier evidence as set out in paragraph 42 above, thus undermining his arguments regarding implied assent.

Mr Giurina’s contentions that the Council knew of the Assent or the implied assent are unsupported by anything more than his own assertions.

Even if the Assent occurred in 2003 and (setting aside the illogicality) that it could be taken as Mr Giurina making a representation to himself that he presently had or in the future would acquire an interest in the Property, it cannot be said that Mr Giurina acted to his detriment and changed his position in reliance on his expectation or belief. Regardless of whether the outgoings of the Property had to be paid by him as Executor or specific beneficiary, Mr Giurina acting in either capacities would ultimately be liable for the payments.

Therefore, and for the reasons expressed above, I find that Mr Giurina does not have a prima facie case to the interest claimed in the First Caveat. Even if I am wrong about that, I consider that prima facie case to be very weak.

I note, for the sake of completeness, that the law presumes against an assent where an executor-beneficiary transfers estate property to himself before satisfying all debts of the estates, and that it presumes that the transfer was made on the footing that the property remained available to meet those debts.[36] Under statute, other than in favour of a purchaser of an estate or interest, an assent does not prejudice an executor’s right to recover the estate or interest to which the assent relates, or to be indemnified out of that estate or interest against any duty, debt or liability to which the estate or interest would have been subject had there been no assent.[37]
[36]Holdway v Arcuri Lawyers [2009] 2 Qd R 18; see also G.E. Dal Pont, Law of Succession (3^rd edition, LexisNexis, 2021), [10.41].
[37]Administration and Probate Act 1958 (Vic), s 41(6).

If there is no prima facie case, the balance of convenience does not arise. However, for completeness and if it is the case that there is a prima facie case, then, because it is very weak, the balance of convenience favours the Council.

I accept that Mr Giurina’s intention to live in the Property or for his family to do so is a matter which favours maintenance of the First Caveat. This is not particularly strong, however, as Mr Giurina has taken no steps to have the Property registered in his name or to ensure that he is able to live in it for some years now, and so it is difficult to accept that there is a particular affection or affinity with the Property. In any event, it is not strong enough to overcome the balance of convenience of removing the First Caveat. I do not accept that the loss of the benefit of the expenditures he has made in respect of the Property if sold is a factor favouring the maintenance of the First Caveat, since it is not established that there are such losses. That possibility is merely speculative and hypothetical at this juncture.

The Second Caveat
Mr Giurina’s submissions
Prima facie case

Mr Giurina submits that following Kitto J in Livingston v Commissioner of Stamp Duties (Q),[38] a residuary beneficiary has an interest in land even when the administration of an estate is incomplete. He submits that this interest falls within the definition of the TLA under s 89(1) and would be sufficient to form the basis of lodging a caveat under that section. Mr Giurina submits that on the analysis above, a specific beneficiary is in an even stronger position to lodge a caveat to protect his interest.
[38](1960) 107 CLR 411, 449-450.

Mr Giurina submits that the Will did not grant him any power to sell the Property in his capacity as executor.

Mr Giurina submits that, with the Assent and implied assent, his interest in the Property as specific beneficiary has been perfected. Mr Giurina submits that therefore the Property is no longer part of the Estate and he is estopped from dealing with the Property in his capacity as executor to satisfy the Costs Orders. Mr Giurina submits that the estoppel extends to any entity, such as the sheriff, and prevents them from relying on Mr Giurina’s capacity as executor to seize the Property.

Balance of convenience

Mr Giurina made the same submissions discussed at paragraphs 124 to 126 above.

He contends that the Estate had no debts at the time of the Assent, so it was appropriate for the Property to be disposed to him as per the Will. He says that the equitable title in the Property vested in him and the Property cannot be used to satisfy those debts as it is no longer part of the Estate. He says that regardless of who the executor of the Estate is, that person would have no power to sell the Property to satisfy any debts.

The Council’s submissions
Prima facie case

In addition to the submissions made in respect of the First Caveat, the Council submitted that Mr Giurina remains a beneficiary under the Will and the specific devise of the Property will now fail because the Estate is forced to sell the Property to pay the debts of the Estate since the Estate has no other asset.

The Council submits that the grounds of the Second Caveat is in the circumstances ‘… where probate has been granted and all debts in the estate have been paid’. The Council submits that the Estate has debts to the Council, which is not disputed, and those debts arose as a direct consequence of Mr Giurina challenging the issuing of Building Notices issued on the Property by the Council, in his capacity as Executor of the Estate. Therefore, the Council says that it is not the case that there are no debts of the Estate.

Balance of convenience

In addition to its submissions made in respect of the First Caveat, the Council submits that Mr Giurina has not established he would personally suffer any actual prejudice if the caveats were removed as there is no plausible argument that the Council is not entitled to the benefit of the Costs Orders against the Estate. The Council further submits that the ultimate failure of the specific devise of the Property to Mr Giurina as beneficiary because the Estate is forced to sell the Property, by the Warrants, is not a sufficient or unusual circumstance to consider when deliberating the balance of convenience.

The Council submits that any remainder, after the payment of those debts, may be received by Mr Giurina as a beneficiary.

Consideration

To the extent that the interest claimed in the Second Caveat relies on the Assent (including the estoppel claim) or the implied assent, then there is no prima facie case to that interest, for the same reasons as set out in respect of the First Caveat. If I was wrong in that respect, then I reiterate that any case founded on the Assent is very weak.

Mr Giurina does not appear to have taken into account a further passage from Livingston v Commissioner of Stamp Duties (Q), where Kitto J went on to say the following:

But the existence of a beneficial interest is one thing, and the nature of it is another. … the rights of residuary beneficiaries while administration is incomplete stop short of entitling them to any of the assets in specie, or to any of the income in specie, or to any property or any part or share of property into which either the assets or their income may be converted. The beneficiaries are entitled only to receive, eventually, a share of whatever turns out to be left when the administration is complete; and that may not include any of the existing assets or their income, or anything representing either, for conceivably an asset may be sold and its proceeds used up in the process of administration, and the income may be similarly absorbed. Of course the beneficiaries’ rights are rights with respect to, or “in”, or ad each specific asset for the time being in the estate; but the important point to notice is that each such asset is liable, in the very working out of those rights themselves, to disappear from the estate. In other words, the nature of the beneficiaries’ interest in the particular assets necessarily accords with the nature of their interests in the residue as a whole.[39]

[39](1960) 107 CLR 411, 450-451.

In any event, both this discussion and that relied upon by Mr Giurina pertains to residuary beneficiaries.

In circumstances where Mr Giurina maintains that the administration of the Estate is not complete and that it appears to be common ground that there are no other assets of the Estate (apart possibly from some vague and unpursued allegation regarding possible fraud upon Ms Nacinovich), I do not accept that the Property is no longer an asset of the Estate and cannot be used for satisfying the debts of the Estate. It cannot be the case that where there are no residuary assets and there are debts, that assets which are the subject of a specific devise are not available to satisfy the liabilities of the Estate. Where the residuary is insufficient to meet the liabilities of the Estate, the principles of abatement will apply in respect of specific bequests.

I note that the beneficiaries of an unadministered estate lack standing to claim any proprietary interest, including when it comes to lodging a caveat over estate property.[40] Thus Mr Giurina’s submission to the contrary is not accepted.
[40]See G.E. Dal Pont, Law of Succession (3^rd edition, LexisNexis, 2021), [10.43] and the cases cited therein.

For similar reasons to those expressed above, I do not accept that there is a prima facie case that the Property is no longer an asset of the Estate. It is inconsistent with much that has gone before this particular proceeding and it smacks of a cynical attempt to impede the Council in enforcing its Costs Orders.

To the extent that it is necessary to consider the balance of convenience, I arrive at the same conclusion for the Second Caveat as I reached for the First Caveat, for the same reasons.

Conclusion

For these reasons, the Caveat Removal Application will be granted in respect of both the First Caveat and the Second Caveat.

I also consider it appropriate to make orders of the type sought by the Council such that Mr Giurina is not able to lodge any further caveats or be involved, directly or indirectly, with the lodging of caveats, on the Property without the leave of the Court. In my view this is necessary by reason of his involvement with Licia’s Caveat and his signalling the possibility of future caveats, including by Licia, which have a spurious basis. In this regard, his submission about another possible caveat by Licia as set out at paragraph 51(g) above hardly reveals a caveatable interest.

The parties are directed to confer as to a form of orders to give effect to this judgment, including as to costs.

By 6 March 2023, the parties are to send to my Chambers:

(a) Proposed orders if such are agreed; or

(b) Their preferred form of orders if agreement is not reached.

The proceeding will be listed for 9 March 2023 at 10.30am for the making of final orders, however if consent orders are reached then I may in my discretion make the orders on the papers without the need for that hearing. The parties will be advised as to the course I will adopt.

SCHEDULE OF PARTIES

S ECI 2022 03279
BETWEEN:
GREATER GEELONG CITY COUNCIL	Plaintiff
- v -
ERMANNO GIURINA	First Defendant
REGISTRAR OF TITLES	Second Defendant

[2023] VSC 59

22 February 2023