Mavridis v Andronescu - [2018] VSC 227

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S CI 2017 03378

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and -

IN THE MATTER of the Will and Estate of ADRIAN CLAUDIU ROSCA, deceased

VICKY MAVRIDIS	Plaintiff
v
CORNELIA ANDRONESCU (who is sued as the Executor of the Will of the abovenamed deceased)	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2018
DATE OF JUDGMENT:	8 May 2018
CASE MAY BE CITED AS:	Mavridis v Andronescu
MEDIUM NEUTRAL CITATION:	[2018] VSC 227

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PRACTICE AND PROCEDURE – Application for approval of compromise of a claim under Part IV of the Administration and Probate Act 1958 (Vic) – Plaintiff bankrupt – When compromise entered into parties believed plaintiff to have been discharged from bankruptcy – Whether substratum of compromise changed – Whether appropriate to approve compromise – Bankruptcy of plaintiff is a relevant consideration in any provision made by the Court under Part IV of the Act – Substratum for approval of compromise changed – Application adjourned – Collicoat v McMillan [1999] 3 VR 803; PatriciaMorris v Smoel [2014] VSC 31; Poesch v Grosvero [2013] VSC 596 referred to.

BANKRUPTCY — Approval of compromise – Plaintiff an undischarged bankrupt at time of entry into compromise – Rights of trustee in bankruptcy to intervene – Trustee holds a statutory interest in the entitlement of the plaintiff under the compromise – Right to intervene – Levy v Victoria (1997) 189 CLR 579; Collicoat v McMillan [1999] 3 VR 803.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared on her own behalf
For the Defendant	Mr R N J Young	Waters Lawyers
For the Trustee of the Bankrupt Estate of the Plaintiff	Mr M T Sowden	Zervos Lawyers
For the stepson of the deceased	Mr N Wallace, solicitor Amicus curiae	Hentys Lawyers

HIS HONOUR:

Introduction

The application before the Court is made by the defendant by summons for approval of a compromise of a claim made by the plaintiff under Part IV of the Administration and Probate Act 1958 (Vic) (‘Act’). It has been necessary to adjourn the application for reasons which are unusual in applications of this kind.

Background

Adrian Claudiu Rosca (‘deceased’) died on 3 March 2017 leaving a will made on 9 February 2015 (‘Will’), probate of which was granted to the defendant, Cornelia Andronescu on 24 April 2017.

The plaintiff is the domestic partner of the deceased and as such an eligible person for the purposes of s 91 of the Act. The proceeding was commenced by the plaintiff on 23 August 2017 claiming further provision from the estate of the deceased for her proper maintenance and support pursuant to s 91 of the Act.

The residuary beneficiaries of the estate are minors. They are Jordan Claude Rosca born 22 December 2003 (‘Jordan’) and Monique Chloe Rosca, born 27…

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 Mavridis v Andronescu

Details

AGLC: Mavridis v Andronescu [2018] VSC 227
Case: [2018] VSC 227
Decision Date: 8 May 2018

CaseChat Overview and Summary

The case of Mavridis v Andronescu involves an application for the approval of a compromise of a claim under Part IV of the Administration and Probate Act 1958 (Vic). The plaintiff, Mavridis, had entered into a compromise with the defendant, Andronescu, believing that he had been discharged from bankruptcy. However, at the time of the compromise, Mavridis was not actually discharged from bankruptcy. The primary legal issue before the court was whether the compromise could be approved, given the change in the substratum of the compromise due to the bankruptcy status of the plaintiff.

The court had to determine if the bankruptcy of the plaintiff was a relevant consideration in any provision made by the Court under Part IV of the Act. The court examined the cases of Collicoat v McMillan [1999] 3 VR 803, Patricia Morris v Smoel [2014] VSC 31, and Poesch v Grosvero [2013] VSC 596 to assess whether the substratum for approval of the compromise had changed. The court concluded that the substratum had indeed changed due to the plaintiff's bankruptcy status and that the application for approval of the compromise was not appropriate at that time.

In light of the findings, the court decided to adjourn the application. The trustee in bankruptcy, who holds a statutory interest in the entitlement of the plaintiff under the compromise, had the right to intervene. This right was supported by the case of Levy v Victoria (1997) 189 CLR 579 and Collicoat v McMillan [1999] 3 VR 803. The court did not proceed with the approval of the compromise and instead directed further steps to be taken, leaving the matter open for future consideration.

Orders