Hanna v Hanna
[2009] VSC 188
•26 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. Prob 5 of 2006
| JACK HANNA | Plaintiff |
| v | |
| JOSEPH HANNA | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 MARCH 2009 | |
DATE OF JUDGMENT: | 26 MARCH 2009 | |
CASE MAY BE CITED AS: | HANNA v HANNA | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 188 | |
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PRACTICE AND PROCEDURE – Application to advance final appointment of administrator of an unadministered estate – Compromise of proceedings – Whether reference to preferred administrator in heads of agreement binding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W. Rimmer | Gavan J. Black |
| For the Defendant | Mr P. Willis |
HIS HONOUR:
This is an application by the plaintiff, Jack Hanna, for orders the effect of which would be to advance the final appointment of ANZ Trustees Limited as administrator of the unadministered estate of the late George Mussa Hanna.
Mr Hanna died intestate in Victoria on 19 October 2002. Letters of administration of his estate were, on 20 February 2003, granted to his eldest brother, Yacul Hanna. Before that brother was able to complete the administration of the estate, he unfortunately died. The date of his death was 9 October 2005.
There remains in the estate two parcels of real property in Victoria with in addition a number of parcels of real estate in Lebanon. A number of persons are believed to be entitled under Victorian law relating to an intestacy to a share of the Victorian assets of the deceased. Among those are Joseph Hanna (another brother of the deceased and the person who has lodged a caveat in this proceeding) and the plaintiff, Jack Hanna.
On or about 28 December 2005, Mr Jack Hanna filed a caveat in relation to the estate of George Hanna. At about the same time, Mr Joseph Hanna likewise filed a caveat.
On 2 March 2006, Justice Coldrey, sitting in the Practice Court of this Court, gave directions in Joseph's proceeding joining Jack Hanna as a defendant to that proceeding and directing that the proceedings instituted respectively by Joseph and by Jack, be heard together.
The result was that each proceeding came on for trial before Justice Byrne on 6 February 2008. Those proceedings were compromised. On 7 February 2008, Heads of Agreement were signed by Joseph Hanna, Jack Hanna and another person interested in the deceased estate, Janet Hanna.
It is not now submitted that the terms of settlement or Heads of Agreement were not signed as I have indicated. The present principal area of dispute is whether a reference or references in the Heads of Agreement to the position of ANZ Trustees as the preferred administrator should now result in declarations and orders that would advance the appointment of that company as the administrator of the estate of George Hanna.
Over 13 months have elapsed since the Heads of Agreement were signed. It seems to me that now it is appropriate for the Court to say that enough time has elapsed and that steps should be taken forthwith to secure the appointment of an administrator of the estate.
It is submitted on behalf of the plaintiff, Jack Hanna, that the appropriate administrator is indeed ANZ Trustees. That company is referred to in the heads of agreement as "the preferred administrator". A further reference to the company is to be found in the final paragraph of the Heads of Agreement which reads as follows:
The proceedings in relation to the appointment of Joseph Hanna or Jack Hanna as administrator are to be adjourned pending application by an independent administrator and Joseph Hanna and Jack Hanna will join in any such further proceeding (if necessary) to enable the appointment of the ANZ Trustees or such other independent professional administrator as may be necessary to give full effect and force to these Heads of Agreement and once such application by an independent administrator has been made, both proceedings of Jack Hanna and Joseph Hanna will be discontinued.
It has been submitted by Mr Rimmer on behalf of the plaintiff that properly construed the Heads of Agreement should be read as a statement in effect binding upon the parties to the Heads of Agreement that ANZ Trustees is the preferred administrator and the parties to the Heads of Agreement are to act in such a way as to advance the appointment of that company as administrator unless that company were to decline appointment in which case the parties would necessarily be required to turn their minds to the appointment of an alternative independent administrator.
In my opinion, that construction of the Heads of Agreement is the correct construction. It seems to me that the reference to ANZ Trustees as the preferred administrator is one which binds the parties to the Heads of Agreement certainly to the extent that unless either ANZ Trustees declines appointment or unless material is put before the court indicating that for some sufficient reason ANZ Trustees should not be appointed, the appointment of that company should be advanced by the parties to the Heads of Agreement. There is no material before the court presently (and none in the 13 months that has elapsed since the Heads of Agreement were signed has been put before the court) to indicate either that ANZ Trustees has declined appointment or that for some reason such appointment would be inappropriate.
As I understand the submissions put upon behalf of Mr Joseph Hanna by Mr Willis - who, it seems to me, has put forward everything that can be properly said on behalf of his client - the qualification his client has to a successful application by ANZ Trustees for appointment as administrator is that the company has not unequivocally stated that if appointed, it would be in a position adequately and appropriately to administer that part of the estate of George Hanna which is situated in Lebanon.
The evidence being as I have described it, it seems to me that there is no basis upon which the court could now say that the status of ANZ Trustees as the preferred administrator, a status given to it by the parties to the Heads of Agreement, should no longer obtain. In other words, there is nothing before the Court to indicate any reason why ANZ Trustees should not be now, as it was on 7 February 2008, the preferred administrator.
I have no reason to think that if an appointment were made of that company by this Court, the authorities in Lebanon would not accord the company appropriate standing or would otherwise inhibit the company from properly carrying out its duties as administrator in relation to that portion of the estate which is in Lebanon.
If, as circumstances turn out, it were to appear that ANZ Trustees could not appropriately and efficiently administer the Lebanese assets of the estate, then as I apprehend the duties of the company in those circumstances, it would seek the appointment of an administrator that was in a position to appropriately and properly administer the Lebanese estate about which the parties are concerned.
It has been suggested (largely in material or in statements put to me from the Bar table) that Mr Joseph Hanna has sought in the 13 months since 7 February 2008, improperly to hinder the appointment of an appropriate administrator of George Hanna's estate and thereby to adversely effect the beneficiaries of that estate. I make no findings in relation to those matters. It is I think sufficient for me to say that, in my opinion, Mr Joseph Hanna has had ample opportunity to put before the Court material to the effect that ANZ Trustees are either unwilling to be appointed or, if appointed, would be unable to execute its duties as it should.
There is no material, as I have said, to that effect, and accordingly it seems to me now appropriate that the Court take what steps are properly open to it to advance the appointment of ANZ Trustees as the administrator of the unadministered estate of George Hanna.
In that respect, it seems to me that it is appropriate that the court declare first, that the caveat filed by Joseph Hanna in this proceeding on 27 June 2008, has expired, and secondly, that no consent or authorisation is required from Joseph Hanna for an application by ANZ Trustees Limited for letters of administration of the unadministered estate of George Hanna.
It also seems appropriate to me to order, first, that Joseph Hanna be made a defendant to this proceeding and that the title to the proceeding be amended accordingly. Secondly, that Joseph Hanna takes such steps as may be appropriate or necessary to further the application by ANZ Trustees Limited for letters of administration of the unadministered estate of George Hanna.
The plaintiff seeks, in addition to orders generally in the form of those I have already pronounced, an order that Mr Joseph Hanna be restrained from taking any step in a court or tribunal or otherwise to oppose, prevent or delay any application by ANZ Trustees Limited. I have not heard the parties on that particular application. It seems to me unnecessary to specifically restrain Joseph Hanna in the terms put forward by the plaintiff given that he will be under an obligation to assist in the application. I would expect Mr Joseph Hanna to obey that order and if he does, then the question of any restraint will not arise.
There remains the question of costs. In my opinion, it is appropriate that Joseph Hanna pay the costs of the plaintiff of and incidental to this application which was made by the plaintiff by his summons filed on 24 February 2009.
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