Molnar v Butas (No 4) - [2018] VSC 165

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST

S CI 2017 03738

IN THE MATTER of the Estate of ROZALIA WRIGHT, deceased

ANDREAS 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 JUDGMENT:	16 April 2018
CASE MAY BE CITED AS:	Molnar v Butas (No 4)
MEDIUM NEUTRAL CITATION:	[2018] VSC 165

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COSTS — Where plaintiff’s application to remove executor of deceased’s estate unsuccessful — Where application contrived and without a proper basis — Costs to follow the event — Indemnity costs ordered — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M S Goldblatt	Ian G Hone
For the Defendant	Ms U Stanisich	Griffin Law Firm

HER HONOUR:

Rozalia Wright died on 5 September 2015, aged 78 years. She was survived by her son (‘the defendant’) and her half-brother (‘the plaintiff’). The estate of the deceased was left to the defendant, his wife and the plaintiff as tenants in common in equal shares. Probate of the deceased’s will dated 7 May 2006 was granted to the defendant on 15 September 2016.

On 22 November 2017, the Court dismissed the plaintiff’s application for the removal of the defendant as the executor of the estate of the deceased. The Court determined that the plaintiff’s grounds for the removal of the defendant as the executor of the estate were contrived, without substance and there was no proper basis for the removal of the defendant.[1]
[1]Molnar v Butas (No 3) [2017] VSC 711 (22 November 2017) [35].

The parties were unable to agree on the costs of the application and written submissions were subsequently filed with the Court.

Orders sought by the parties

The plaintiff seeks for the costs of both the plaintiff and the defendant to be borne by the estate, assessed on the standard basis.

The defendant seeks orders that the plaintiff personally pay the defendant’s costs of and incidental to the proceeding, assessed on an indemnity basis.

Plaintiff’s submissions

The plaintiff submits that where a beneficiary of an estate makes an application, the common course is for the costs to be borne by the estate. The plaintiff submits he had real and legitimate grounds to claim that the defendant had misconducted himself as the executor of the estate. Notwithstanding that the Court determined there was no proper basis upon which to bring the application and that the application was contrived and without substance, these views arose with the benefit of hindsight and the explanations and submissions of the defendant, which were not available to the plaintiff when he instituted the application.

Defendant’s submissions

The defendant submits he was the successful party in resisting the application. Further, there are no special circumstances in this proceeding that displace the usual rule that costs follow the event and the defendant’s costs should…

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 (No 4)

Details

AGLC: Molnar v Butas (No 4) [2018] VSC 165
Case: [2018] VSC 165
Decision Date: 16 April 2018

CaseChat Overview and Summary

Molnar v Butas (No 4) involved a dispute between the plaintiff, Molnar, and the defendant, Butas, regarding the management of the estate of a deceased individual. The plaintiff sought to remove the executor of the estate, Butas, on the basis of dissatisfaction with his handling of the estate. The matter was heard in the Supreme Court of Victoria. The central legal issues before the court were whether Molnar's application to remove Butas was valid and, if not, whether the application was contrived and without proper basis. The court was also required to determine the appropriate costs order, given the nature of the application.

The court found that Molnar's application was both contrived and without a proper basis. The court observed that Molnar's dissatisfaction with Butas's management of the estate was not sufficient grounds to remove him as executor. The court emphasised that such applications should be made with good faith and on legitimate grounds. The court concluded that Molnar's application was not made in good faith, as it was an attempt to undermine Butas's position rather than a genuine concern for the proper administration of the estate. Given the contrived and baseless nature of the application, the court ordered that costs were to follow the event and awarded indemnity costs to Butas. The court found that no point of principle was raised that would warrant a different outcome.

The final orders of the court were that Molnar's application to remove Butas was dismissed, and costs were to be awarded to Butas on an indemnity basis. The court's decision underscored the importance of good faith in legal proceedings and highlighted the potential consequences of making unfounded and vexatious applications.

Orders