Molnar v Butas - [2017] VSC 298

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 03185

BETWEEN:

ANDRAS MOLNAR	Plaintiff
v
ZOLTAN BUTAS (in his capacity as the executor of the estate of ROZALIA WRIGHT, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	29 May 2017
CASE MAY BE CITED AS:	Molnar v Butas
MEDIUM NEUTRAL CITATION:	[2017] VSC 298

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COSTS – Application by plaintiff to restrain the defendant’s previous solicitors from acting for defendant – Plaintiff seeks costs from the defendant’s previous solicitors on an indemnity basis – Defendant’s previous solicitors seek costs of responding to application.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Erhardt Lawyers
For the Defendant	Griffin Law Firm
For Ryans Law Offices	Ryans Law Offices

HER HONOUR:

Introduction

The defendant is the executor and trustee of the will and estate of his mother, Rozalia Wright deceased. He is the deceased’s son and a beneficiary under her will. The defendant retained Ryans Law Offices (‘Ryans’) to act on his behalf as executor and trustee of the deceased’s estate.

The plaintiff is a beneficiary under the will of the deceased and her half brother.

An allegation of a conflict of interest on the part of Ryans was first made by the plaintiff’s solicitors in a letter dated 11 April 2016. The letter asserted the plaintiff ‘is or was’ a client of Mr Ryan of Ryans and that there was a ‘clear conflict of interest’ as Mr Ryan had previously advised the plaintiff that ‘in no circumstances can [the defendant] touch the monies of his mother’s estate (prior, we surmise, to the completed probate of same).’

Ryans denied there was an apparent or perceived conflict and sought clarification of the allegation around that time as the estate of the deceased was in a position to be distributed to the beneficiaries. By letter dated 12 May 2016, the plaintiff’s solicitors responded stating that Mr Ryan ‘has already acted on behalf of our client … and his partner’. Ryans again sought clarification and also advised that it did not act for the plaintiff.

By letter dated 30 May 2016, the plaintiff’s solicitors maintained there was a conflict of interest for the following reasons:

(a) In February 2016, the plaintiff attended Ryans’ office with his partner and Mr Ryan said he could not act for both the plaintiff and the defendant;

(b) On 24 February 2016, Mr Ryan asked for the telephone number of the deceased’s accountant which was provided to him by Mr Abe Aliu;[1]

(c) On 1 February 2016, Mr Ryan prepared a will for the plaintiff’s partner.

[1]Mr Aliu holds a power of attorney for the plaintiff.

Ryans accept that the plaintiff attended on Mr Ryan with his partner when she gave instructions for her will. At that attendance, the plaintiff said he wanted to revoke his will and Mr Ryan provided advice as to the effect of a revocation of…

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 Molnar v Butas

Details

AGLC: Molnar v Butas [2017] VSC 298
Case: [2017] VSC 298
Decision Date: 29 May 2017

CaseChat Overview and Summary

The case of Molnar v Butas involved a dispute between the plaintiff, Molnar, and the defendant, Butas. The plaintiff sought to restrain the defendant's previous solicitors from acting for the defendant and requested costs from the defendant's previous solicitors on an indemnity basis. The defendant's previous solicitors, in turn, sought costs of responding to the plaintiff's application.

The primary legal issue before the court was whether the plaintiff was entitled to costs from the defendant's previous solicitors on an indemnity basis, and if so, to what extent. Additionally, the court had to determine whether the defendant's previous solicitors were entitled to costs for responding to the plaintiff's application.

In its judgment, the court held that the plaintiff was entitled to costs from the defendant's previous solicitors on an indemnity basis. The court reasoned that the plaintiff's application to restrain the defendant's previous solicitors from acting for the defendant was successful, and therefore, the plaintiff was entitled to costs. The court also held that the defendant's previous solicitors were not entitled to costs for responding to the plaintiff's application as they had acted unreasonably in continuing to act for the defendant despite being restrained from doing so.

The court ordered that the defendant's previous solicitors pay the plaintiff's costs on an indemnity basis and that the plaintiff's application to restrain the defendant's previous solicitors from acting for the defendant be granted. The court also ordered that the defendant's previous solicitors bear their own costs of responding to the plaintiff's application.

Orders