Kritsidimas v Dimitrakakis - [2019] VSC 704

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 02257

GEORGIA KRITSIDIMAS in her capacity as Executrix of the deceased Estate of ELIAS DIMITRAKAKIS	Plaintiff
v
VASSILIOS DIMITRAKAKIS	Defendant

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JUDGE:	Lansdowne As J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2018
DATE OF JUDGMENT:	23 October 2019
CASE MAY BE CITED AS:	Kritsidimas v Dimitrakakis
MEDIUM NEUTRAL CITATION:	[2019] VSC 704

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ADMINSTRATION OF ESTATES – Application to remove plaintiff as executor - Executor in the underlying proceeding alleges that the defendant beneficiary acted unconscionably or in breach of fiduciary duty in respect of transfers by the deceased to the defendant of real estate in Greece and withdrawals by the defendant from certain bank accounts in Greece - Defendant denies all allegations – Administration of the estate largely completed except for distribution to the defendant of gifts of real estate - Executor plaintiff seeks to withhold those gifts pending determination of the proceeding – Whether plaintiff should be removed by reason of residence in Greece – Whether plaintiff should be removed as unfit by reason of various matters including her negative views of the defendant - Whether withholding the gifts to the defendant justified by the principle of Cherry v Boultbee or equitable set off – Held: not so justified – Plaintiff ordered to distribute gifts to the defendant – Administration and Probate Act 1958 (Vic) s 34(1)(a) and s 34(1)(c) – Cherry v Boultbee (1839) 4 My & Cr 442 and Re Taylor [1894] 1 Ch 671 considered – Re Akerman [1891] 3 Ch 212 and Re Savage [1918] 2 Ch 146 considered and applied – Stewart v Moden [2015] VSC 369 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M W Seelig	G & M Lawyers
For the Defendant	Mr J D Catlin	Marshalls & Dent & Wilmoth

TABLE OF CONTENTS

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

Background......................................................................................................................................... 2

Legal framework................................................................................................................................. 8

Submissions...................................................................................................................................... 11

Discussion.......................................................................................................................................... 12

Paragraph (a): absence from Victoria....................................................................................... 12
Paragraph (c): unfit to act as executrix..................................................................................... 15
Delay. ……………………………………………………………………………………..15
Conflict between interest and duty................................................................................. 17
Abuse of process................................................................................................................ 18
Attitude to the defendant................................................................................................. 18
Cherry v Boultbee; equitable set-off............................................................................... 21

Appropriate relief and orders........................................................................................................ 28

HER HONOUR:

Introduction

The plaintiff in this proceeding is the executrix of the estate of her late father (‘the Deceased’). The defendant is her brother. The plaintiff seeks to recover from the defendant for the estate various sums and property she alleges were appropriated by the defendant from the Deceased unconscionably or in breach of fiduciary duty. The plaintiff also seeks to offset certain entitlements owed to the defendant pursuant to the will of the Deceased (‘Will’) against the moneys claimed, and be permitted not to distribute those entitlements until the determination of the proceeding.

The proceeding has had something of a tortuous procedural history, which it is not necessary to set out here in detail. The plaintiff’s claim is now pleaded in her Further Amended Statement of Claim…

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 Kritsidimas v Dimitrakakis

Details

AGLC: Kritsidimas v Dimitrakakis [2019] VSC 704
Case: [2019] VSC 704
Decision Date: 23 October 2019

CaseChat Overview and Summary

The matter of Kritsidimas v Dimitrakakis was heard in the Supreme Court of Victoria, where the plaintiff, Kritsidimas, sought to remove the defendant, Dimitrakakis, as an executor of the estate of a deceased person. The underlying dispute concerned transfers of real estate in Greece and withdrawals from bank accounts, which the executor alleged were made unconscionably or in breach of fiduciary duty by the defendant, a beneficiary of the estate. The defendant denied these allegations. The administration of the estate had largely been completed, with the exception of the distribution of certain gifts of real estate to the defendant. The executor sought to withhold these gifts pending the determination of the proceeding.

The court was required to decide whether the executor should be removed due to her residence in Greece, whether she should be removed as unfit due to her negative views of the defendant, and whether withholding the gifts to the defendant was justified by the principle of Cherry v Boultbee or equitable set off. The court considered the relevant provisions of the Administration and Probate Act 1958 (Vic) and the applicable case law, including Cherry v Boultbee and Re Taylor. The court also considered and applied Re Akerman and Re Savage, distinguishing Stewart v Moden.

The court found that the executor should not be removed due to her residence in Greece or her negative views of the defendant. The court held that withholding the gifts to the defendant was not justified by the principle of Cherry v Boultbee or equitable set off. The court ordered the executor to distribute the gifts to the defendant, stating that the Administration and Probate Act 1958 (Vic) did not provide for withholding of assets pending the outcome of the proceeding. The court further held that the executor's negative views of the defendant did not render her unfit to act as executor.

Orders