Litopoulos v Indiana Holdings Pty Ltd

The Court of Appeal of the Supreme Court of Western Australia considered the appellant's application for leave to appeal against orders made by the master dismissing her application for leave to amend her originating summons in the primary proceedings. The appellant sought leave to amend her originating summons to seek a declaration relating to a debt of $653,331.00 owed by the KLFT to Kimon Litopoulos. Vicki Litopoulos contends that the assignment of the debt should be set aside on the basis that Kimon Litopoulos lacked capacity to make the assignment or, alternatively, that the assignment was procured by unconscionable dealing or undue influence.

The Court of Appeal found that the master was correct to conclude that the fact that Vicki Litopoulos is a beneficiary under the most recent will prepared by Kimon Litopoulos does not give her standing to pursue the proposed claim. The Court of Appeal held that a beneficiary named in a will of a person who is still living has no proprietary interest in the assets of a deceased's estate even when the assets of the estate are in the hands of the executor of the estate. The Court of Appeal also found that the master was correct to conclude that Vicki Litopoulos did not have standing to bring proceedings on behalf of the KLFT or on behalf of Kimon Litopoulos. The Court of Appeal held that the master's orders do not prejudice Vicki Litopoulos bringing proceedings seeking to set aside the assignment of the debt in a representative capacity. Therefore, it is not in the interests of justice to grant leave to appeal in this case. The application for leave to appeal will be refused and the appeal will be dismissed.