Makripoulias v Arhontovasilis - [2022] VSC 53

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUST EQUITY AND PROBATE LIST

S PRB 2021 07071

DIMITRA MAKRIPOULIAS	Plaintiff
v
AFRODITI ARHONTOVASILIS	Applicant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2022
DATE OF JUDGMENT:	16 February 2022
CASE MAY BE CITED AS:	Makripoulias v Arhontovasilis
MEDIUM NEUTRAL CITATION:	[2022] VSC 53

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PRACTICE AND PROCEDURE – Legal Practitioners – Proceeding for revocation of grant of probate – Application to restrain legal practitioner from acting – Application granted – Overwhelmingly likely that legal practitioner will be material witness – Witness about controversial matters – Conflict between legal practitioner’s interests and client’s interests – Miller v Martin [2019] VSCA 86; The Queen v Silverstein [2020] VSCA 233; Kallinicos v Hunt (2005) 64 NSWLR 561; Mitchell v Burell [2008] NSWSC 772.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Margo J Harris	Thomas Koutsoupias Lawyers & Co
For the Applicant	Ms Anita S Bartfeld	TNV Lawyers

HIS HONOUR:

On 1 October 2021, Afroditi Arhontovasilis filed an application for revocation of the grant of probate made on 3 May 2021 in respect of a will dated 29 January 2020 made by Panagiotis Arhontovasilis (the will). The grant was made to Dimitra Makripoulias. Ms Makripoulias and Ms Arhontovasilis are sisters and the children of Panagiotis Arhontovasilis (the deceased).

On 2 December 2021, Ms Arhontovasilis filed a summons seeking an order that the solicitor retained by Ms Makripoulias in Ms Arhontovasilis’ application for revocation, Mr Thomas Koutsoupias, be restrained from acting for Ms Makripoulias on the grounds that he will be a material witness in the case.

By agreement between the parties, the summons was listed for hearing on 1 February 2022. For the following reasons, an order will be made restraining Mr Koutsoupias from acting for Ms Makripoulias in the application for revocation.

Background

The deceased was 86 years of age when he died on 12 March 2021. The deceased’s wife predeceased him. In addition to Ms Makripoulias and Ms Arhontovasilis, he was survived by two infant grandchildren who are the children of Ms Makripoulias.

The will appoints Ms Makripoulias as the sole executor of the deceased’s estate and bequeaths the deceased’s entire residuary estate to the deceased’s grandchildren upon them attaining 18 years of age. It was uncontroversial that the will is a significant departure from the terms of the deceased’s penultimate will made in March 2013. That will appointed both Ms Makripoulias and Ms Arhontovasilis as executors and beneficiaries of his estate in the event that his wife predeceased him.

In her grounds of revocation filed with the Court on 4 October 2021, Ms Arhontovasilis relies on two grounds: (a) ‘the deceased may have lacked testamentary capacity during the period before or at the time of execution of the 2020 will’; and (b) ‘the Will was made in suspicious circumstances’. Ms Arhontovasilis has provided particulars of these grounds, the adequacy of which had been the subject…

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.

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Details

Case: [2022] VSC 53
Decision Date: 16 February 2022

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Makripoulias v Arhontovasilis was heard, where the applicant sought to restrain the respondent, a legal practitioner, from acting in proceedings related to the revocation of a grant of probate. The applicant contended that the respondent, who had been engaged to represent them, was likely to be a material witness in the matter and that this posed a conflict of interest. The dispute centred on the respondent’s potential testimony regarding contentious issues, which could compromise the integrity of the proceedings and the respondent’s ability to effectively advocate for the applicant.

The central legal issue before the court was whether the respondent, who was both a legal practitioner and a potential material witness, could continue to act for the applicant in the revocation of probate proceedings. The court had to determine if there was an irreconcilable conflict between the respondent’s duty to their client and their potential role as a witness, given the sensitive and contentious nature of the matters at hand. Precedents such as Miller v Martin, The Queen v Silverstein, Kallinicos v Hunt, and Mitchell v Burell were considered to elucidate the applicable legal standards and principles governing conflicts of interest in legal practice.

The court found that there was a substantial likelihood that the respondent would be called as a material witness in the proceedings, and their testimony would pertain to matters that were directly at issue. Given the contentious nature of these matters, the court concluded that a conflict of interest was present, which could impair the respondent's ability to act in the best interests of the applicant. The court relied on established authority to determine that the respondent’s dual role as both advocate and potential witness created an irresolvable conflict, warranting the restraint of the respondent from acting further in the case. Consequently, the court granted the application to restrain the respondent from acting and ordered that they refrain from participating in the revocation of probate proceedings.

The final orders of the court mandated that the respondent cease all actions in the revocation of probate proceedings and refrain from any further involvement in the matter. The court's decision underscored the importance of maintaining the integrity of legal proceedings and ensuring that legal practitioners can act without conflicts that might compromise their duties to their clients or the court.

Orders