Klement v Randles - [2010] VSCA 160

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3702

JIRI KLEMENT	Applicant
	v
PETER JAMES RANDLES	Respondent

S APCI 2009 3808

JIRI KLEMENT	Appellant
	v
PETER JAMES RANDLES	Respondent

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JUDGES	MAXWELL P and EMERTON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 March 2010
DATE OF JUDGMENT	25 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 160
JUDGMENTS APPEALED FROM	Randles (as Trustee of the Estate of Ludmilla Klem) v Klement (Unreported, Habersberger J, 15 December 2008); Klement v Randles [2009] VSC 320 (Davies J)

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ADMINISTRATION AND PROBATE — Application for leave to appeal against refusal to set aside default judgment — Application for removal of executor — Unfit to act —Administration and Probate Act 1958 (Vic) s 34(1)(c).

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Appearances:	Counsel	Solicitors
The Applicant/Appellant appeared in person
For the Respondent	Mr M R Simon	Lennon Mazzeo Lawyers

MAXWELL P

EMERTON AJA:

Jiri Klement, who calls himself Reverend Klement and is also known as George Klement, has brought to the Court two related matters for determination: an application for leave to appeal the decision of a judge in the trial division refusing to set aside a default judgment for possession; and an appeal from the decision of a judge in the trial division refusing to remove an executor. Both matters concern the administration of the estate of Reverend Klement’s mother, Ludmilla Klement, also known as Sister Francis Klement.

By summons filed on 19 January 2009, in proceeding No 3702 of 2009 (‘the possession proceeding’), Reverend Klement seeks leave to appeal from orders made on 15 December 2008 by Habersberger J. That proceeding was an appeal brought by Reverend Klement against a refusal to set aside a default judgment for possession in favour of the respondent (‘Mr Randles’) as the executor and trustee of the estate of Mrs Klement. The property in question is occupied by Reverend Klement under a life tenancy. His Honour made orders dismissing the appeal and Reverend Klement now seeks leave to appeal those orders.

By Notice of Appeal dated 16 July 2009, in proceeding No 5425 of 2009 (‘the executor proceeding’), Reverend Klement appeals from the decision of Davies J delivered on 8 July 2009. That proceeding concerned an application by Reverend Klement pursuant to s 34 of the Administration and Probate Act 1958 (Vic) to have Mr Randles removed as executor of the will of Mrs Klement. Her Honour gave judgment in favour of Mr Randles and dismissed the application. Reverend Klement now appeals against the entirety of her Honour’s judgment.

Both matters were heard by this Court on 18 March 2010. At the outset, Reverend Klement told the Court that he had not expected to argue the application for leave to appeal in the possession proceeding and that he had come to court expecting to deal only with the appeal in the executor proceeding. Reverend Klement’s attention was drawn to orders made on 19 October 2009 by the Acting Registrar of the Court of Appeal, Lansdowne AsJ, that both matters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Klement v Randles

Details

AGLC: Klement v Randles [2010] VSCA 160
Case: [2010] VSCA 160
Decision Date: 25 June 2010

CaseChat Overview and Summary

The matter of Klement v Randles was heard in the Supreme Court of Victoria, where the applicant sought leave to appeal against a refusal to set aside a default judgment and to remove an executor from their position. The dispute centred around the fitness of the executor to manage the estate of the deceased, with the applicant alleging that the executor was unfit to act. The applicant argued that the executor's unfitness rendered the default judgment void and sought to have the executor removed from their position under the provisions of the Administration and Probate Act 1958 (Vic).

The court was required to determine whether the applicant had demonstrated that the executor was unfit to act, as per section 34(1)(c) of the Administration and Probate Act 1958 (Vic). The court also needed to assess whether the applicant had provided sufficient grounds for leave to appeal against the refusal to set aside the default judgment. The applicant argued that the executor's unfitness was a matter of public interest, and that the court should exercise its discretion to grant leave to appeal.

In considering the application, the court examined the evidence provided by the applicant and found that there was insufficient evidence to establish the executor's unfitness to act. The court also found that the applicant had not demonstrated that the refusal to set aside the default judgment was an error of law or a significant miscarriage of justice. As a result, the court dismissed the application for leave to appeal and for the removal of the executor, finding that the applicant had not satisfied the necessary legal standards. The court held that the executor's unfitness was not established on the evidence, and that the default judgment remained valid. The court further found that there was no error of law in the decision of the lower court, and that the application for leave to appeal should be dismissed.

Orders