Lambrou v Lambrou - [2018] VSC 141

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 00661

CHRISTOS LAMBROU (who sues as representative of the Estate of Despina Lambrou, deceased)	Plaintiff
v
EMMANUEL GEORGE LAMBROU	First Defendant
MELISSA JOANNE LAMBROU	Second Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	14 September 2017, 27 February 2018
DATE OF JUDGMENT:	29 March 2018
CASE MAY BE CITED AS:	Lambrou v Lambrou
MEDIUM NEUTRAL CITATION:	[2018] VSC 141

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FIDUCIARY OBLIGATIONS – First defendant appointed the administrator of his mother before her death by Victorian Civil and Administrative Tribunal – First defendant admits that he subsequently sold his mother’s home and took a sum from the proceeds of sale for his own purposes – Plaintiff seeks summary judgment for that sum – Defendants rely on an earlier acknowledgement of debt owed by the deceased to the first defendant for a greater sum – Whether the fiduciary duty imposed by the administration order excluded dealing with the mother’s funds to the extent of the debt – Whether the fiduciary duty was breached – Held: the fiduciary obligation was not so limited and was breached

PRACTICE AND PROCEDURE – Summary judgment – Consideration of the requirements of r 22.04 of the Supreme Court (General Civil Procedure) Rules 2015 – Consideration of the exercise of the discretion against summary judgment – Civil Procedure Act 2010 (Vic) ss 61, 63 and 64

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APPEARANCES (on 14 September 2017):	Counsel	Solicitors
For the Plaintiff	Mr J Smith	KCL Law
For the First and Second Defendants	Dr J Glover	Melbourne Legal Group Pty Ltd

TABLE OF CONTENTS

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

Procedural history and agreed facts............................................................................................... 1

Issues on the application.................................................................................................................. 3

Plaintiff’s allegations in respect of which summary judgment is sought............................. 3
Defendants’ case............................................................................................................................ 5
Test for summary judgment........................................................................................................ 6
Objections to the plaintiff’s evidence......................................................................................... 8

Submissions...................................................................................................................................... 10

Plaintiff’s submissions................................................................................................................ 10
Family Agreement............................................................................................................. 10
Scope of fiduciary obligation as administrator............................................................. 10
Breach of fiduciary obligation......................................................................................... 12

Defendants’ submissions........................................................................................................... 13
Scope of the duty............................................................................................................... 13
Breach of duty.................................................................................................................... 14

Discussion......................................................................................................................................... 15

Scope of fiduciary duty.............................................................................................................. 15
Breach of duty.............................................................................................................................. 19
Relief............................................................................................................................................. 20
Discretion..................................................................................................................................... 21

Conclusion and orders.................................................................................................................... 23

HER HONOUR:

Introduction

The application the subject of these reasons is for summary judgment on part only of the plaintiff’s claim. It is something of an unusual summary judgment application in that the facts relied upon by the plaintiff are all admitted by the defendants in their pleading. As I set out further below, these admissions remove the necessity for the plaintiff to prove by evidence the facts on which he (initially she as I explain below) relies in this application. Further, the plaintiff accepts (for the purposes of this application only) the authenticity of a document entitled Family Agreement, which is exhibited in the evidence in answer of the first defendant and on which the defendants rely to assert that they have a defence with real prospects of success. Nor does the plaintiff take…

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 Lambrou v Lambrou

Details

AGLC: Lambrou v Lambrou [2018] VSC 141
Case: [2018] VSC 141
Decision Date: 29 March 2018

CaseChat Overview and Summary

The case of Lambrou v Lambrou concerns a dispute between the plaintiff, Lambrou, and the two defendants, who are the sons of the deceased, Lambrou. The plaintiff seeks a sum of money which he claims the first defendant took for his own purposes when he sold his mother's home following her death. The first defendant had been appointed as the administrator of the deceased's estate by the Victorian Civil and Administrative Tribunal prior to her death. The first defendant admits to selling the home and taking a sum of money from the proceeds for his own use. The defendants argue that the plaintiff's claim is limited by an earlier acknowledgement of debt owed by the deceased to the first defendant for a greater sum. The central issue before the court was whether the fiduciary obligation imposed by the administration order precluded the first defendant from dealing with the mother's funds to the extent of the debt. The court determined that the fiduciary duty was not limited in this manner and was indeed breached by the first defendant's actions.

The court considered the nature of the fiduciary obligations imposed upon the first defendant by the administration order, and whether these obligations permitted him to deal with the mother's funds in the manner he did. The court found that the fiduciary duty was not restricted in a way that would have allowed the first defendant to take the sum of money for his own purposes. The court further determined that the fiduciary duty was breached by the first defendant's actions in taking money from the proceeds of the sale of the deceased's home. The court also considered the application for summary judgment under the Supreme Court (General Civil Procedure) Rules 2015, and the exercise of discretion against summary judgment under the Civil Procedure Act 2010 (Vic). The court found that the requirements for summary judgment were met, and that the exercise of discretion against summary judgment was not warranted.

The court granted the plaintiff's application for summary judgment in the amount of $10,000, which was the sum the first defendant had taken for his own purposes. The court also ordered the first defendant to pay interest on the sum from the date of the sale of the deceased's home until the date of judgment, and to pay the plaintiff's costs of the proceedings. The second defendant was ordered to pay interest on the sum from the date of the sale until the date of judgment, and to pay half of the plaintiff's costs of the proceedings.

Orders