Karastamatis v Tzanavaras

Case [2013] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

KARASTAMATIS v TZANAVARAS

[2013] SASC 163

Reasons for Decision of The Honourable Justice Nicholson

1 November 2013

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS

SUCCESSION - PERSONAL REPRESENTATIVES - RIGHTS, POWERS AND DUTIES - GETTING IN AND REALISING ESTATE

EQUITY - EQUITABLE REMEDIES - ACCOUNTS AND INQUIRIES - SUMMARY ORDERS FOR ACCOUNTS

SUCCESSION - PERSONAL REPRESENTATIVES - PROCEEDINGS BY PERSONAL REPRESENTATIVES

The plaintiff is the sister of the defendant.  They are the two surviving children of their father who died on 25 January 2008.  On 5 February 2009, probate of the father’s will dated 30 August 2007 was granted to the defendant, he being one of two executors named in the will, but with leave reserved to the plaintiff, the other named executor.  This litigation concerns a number of complaints raised by the plaintiff as to the defendant’s administration of the father’s estate which administration is not yet complete.  The plaintiff has sought an order that the defendant provide a full accounting of his administration of the estate on a wilful default basis.  She maintains that there are a number of estate assets that have not been properly managed or called in and accounted for.  The plaintiff also complains of a failure by the defendant to properly account to her for rents received with respect to a house property at 97 Seventeenth Street, Renmark that was left to the plaintiff and the defendant jointly.  This aspect of the plaintiff’s claim is directed at the defendant in his personal capacity.  The plaintiff seeks an order that the defendant account for rents received and an order for a sale of the property with the net proceeds to be divided between them.

The parties are also in dispute over the proper construction and application of a clause in the father’s will purporting to grant the defendant the right to use (until his death unless earlier surrendered) and “at such times as he may wish” a granny flat which forms part of a house property at 57 Tapleys Hill Road, Glenelg North.  The freehold of this property (but subject to this gift) was left to the plaintiff. 

The defendant, in his defence and cross-claim, put in issue the plaintiff’s allegations of wrongdoing concerning his administration of the estate and his administration of the now jointly owned Seventeenth Street property.  The defendant pressed a claim with respect to his “entitlement” to occupy the granny flat in the Glenelg North property.  The defendant also claimed that the plaintiff wrongfully and for her own purposes withdrew money from their father’s Greek bank account at a time after the father’s death when both the plaintiff and the defendant were signatories to the account.  He has sought an accounting in his favour.  Various other complaints by each party directed to the conduct of the other are also dealt with in the judgment.

HELD:  allowing the plaintiff’s claim in part and allowing the defendant’s cross-claim in part,

Order for account by the defendant…

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AGLC
Karastamatis v Tzanavaras [2013] SASC 163
Case
[2013] SASC 163
Decision Date

CaseChat Overview and Summary

The case of Karastamatis v Tzanavaras involved a dispute between the parties over a property located in Glenelg North, among other matters. The defendant, Tzanavaras, claimed that he had been denied access to the granny flat on the property and his personal belongings were still there. The plaintiff, Karastamatis, indicated during the trial that the defendant would be allowed to retrieve his belongings once appropriate arrangements were made. The court did not intend to make any immediate orders but expected the parties to reach an accommodation to allow the defendant to access and repossess his property.

The legal issues that the court had to decide included whether the defendant should account for various sums to the plaintiff and vice versa, whether the defendant was to be granted an order for account on a wilful default basis, and whether the claims related to the sale in lieu of partition and the residuary estate of the deceased were to proceed. Additionally, the court had to decide on the defendant's claim for personal property left in the granny flat and the plaintiff's claim for work done to improve the Glenelg North property. The court also considered the question of set-off and interest in relation to the monetary claims.

The court found that no basis for an order for account on a wilful default basis had been made out and dismissed the plaintiff's claim in this respect. The court stood over the issue of sale in lieu of partition until the parties had time to consider the reasons and attempt to agree on a regime for the sale of the plaintiff's interest to the defendant. The court ordered the defendant to account to the plaintiff for certain sums, subject to the question of set-off and interest. The court dismissed the plaintiff's claim for rent payable with respect to the Twenty Eighth Street property and the defendant's claims for repayment of a loan and for work done to improve the Glenelg North property. The court stood over further consideration of the claims related to the residuary estate of the deceased and the defendant's claim for personal property left in the granny flat until the parties had time to consider the reasons.

In summary, the court did not make any immediate orders but expected the parties to reach an accommodation to allow the defendant to access and repossess his property. The court ordered the defendant to account to the plaintiff for certain sums, subject to the question of set-off and interest, and dismissed certain claims made by both parties. The court stood over further consideration of some claims until the parties had time to consider the reasons and attempt to reach an agreement. The court intended to give the parties time to consider these reasons and for the plaintiff to prepare draft minutes of orders consistent with these reasons.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J (dissent)
The defendant maintains that for some time now he has been kept out of the Glenelg North property granny flat and that various of his possessions are still in that flat to which he has not been able to obtain access so as to repossess his own property. During the trial the plaintiff made it plain that upon appropriate arrangements being made the defendant would be permitted to come and collect his belongings. Again, the merits of the situation are plain enough but given the nature of the relationship of the two parties there would seen to have been to this point a practical impediment in the way of the defendant being able to repossess his property. I do not propose to make any orders at this stage. Again, in the time that will be made available to the parties to sort out other matters as already indicated in these reasons, I expect the parties to reach an accommodation here and to establish a regime or method by which the defendant can attend at the Glenelg North property, have access to, identify and repossess his property. Conclusion and proposed orders I am in a position now to identify a number of proposed orders. However I intend, as indicated, to give the parties some time to consider these reasons and for the plaintiff to prepare draft minutes of orders consistent with these reasons. In summary the position reached is as follows.Order for account by the defendant on a wilful default basis (i)No basis for such an order has been made out and the plaintiff’s claim in this respect is to be dismissed.97 Seventeenth Street(ii)The issue of sale in lieu of partition is to be stood over until the parties have had time to consider these reasons and attempt to agree a regime for the sale of the plaintiff’s interest to the defendant. The plaintiff is to prepare draft minutes of proposed orders consistent with my reasons on this issue.(iii)The defendant is to account to the plaintiff for the sum of $4,384.50 together with interest and subject to the question of set-off both of which issues are dealt with below.Greek real estate(iv)Claim not pressed by the plaintiff and no orders to be made.Greek pension moneys(v)Claim not pressed by the plaintiff and no orders to be made.Farm tools, vehicle and machinery(vi)Claim not pressed by the plaintiff and no orders to be made.Westpac joint account(vii)The defendant is to account to the plaintiff for the sum of $1,500 together with interest and subject to the question of set-off both of which issues are dealt with below.(viii)The defendant is to account to the plaintiff for the sum of $4,567.50 together with interest and subject to the question of set-off both of which issues are dealt with below. Rent payable with respect to Twenty Eighth Street property(ix)The plaintiff’s claim in this respect is to be dismissed.Residuary estate of the deceased – personal effects(x)Further consideration stood over until the parties have had time to consider these reasons. The plaintiff is to prepare draft minutes of proposed orders consistent with my reasons on this issue.Glenelg North property – clause 4 of the will(xi)The plaintiff is to prepare draft minutes of proposed orders consistent with my reasons on this issue.The Greek Millennium Bank account(xii)The plaintiff is to account to the defendant for the sum of $17,770.75 together with interest and subject to the question of set-off both of which issues are dealt with below.Claim for $25,000 for work done in 1992-1993 to improve Glenelg North(xiii)The defendant’s claim in this respect is to be dismissed.Claim by defendant for repayment of loan of $28,500(xiv)The defendant’s claim in this respect is to be dismissed.Claim by defendant for personal property left in the granny flat(xv)Further consideration stood over until the parties have had time to consider these reasons. The plaintiff is to prepare draft minutes of proposed orders consistent with my reasons on this issue.Set-off and interest

Ratio Decidendi

Legal Principle Established

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