Legal Research
Cases
Morris v Smoel

Morris v Smoel

Case [2013] VSCA 11 15 January 2013

Executors

Procedural Discretion

Appeal

Succession Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0251

PATRICIA MOLLY MORRIS
	Appellant
v
KERRYN LINDA SMOEL and SUSan carolyn Wooster (as Executors of the Will of MAXWELL VERNON MORRIS, Deceased)	Respondents

---

JUDGES:	MAXWELL P and WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 January 2013
DATE OF JUDGMENT:	15 January 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 11
JUDGMENT APPEALED FROM	Smoel v Morris (Unreported, Supreme Court of Victoria, McMillan J, 21 December 2012)

---

WILLS AND ESTATES – Executors – Application seeking judicial advice – Proposed sale of assets – Estate needing liquidity to meet liabilities – Largest debt owed to executors’ solicitors – Whether debt properly incurred – Opposing beneficiary sought to rely on late‑filed affidavit – Judge refused to receive affidavit – Whether procedural discretion miscarried – Whether judge bound to consider disputed history of administration of estate – Limited scope of advice proceeding – Court’s power discretionary – No error established – Appeal dismissed – Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 applied – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 54.02.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C Sparke SC	K & L Gates
For the Respondents	Mr P Crofts	Aitken Partners Pty Ltd
For Peter Morris	Melbourne Legal Chambers

MAXWELL P:

Introduction

On 21 December 2012, McMillan J made orders under rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 authorising the respondents, in their capacity as executors of the will of Maxwell Vernon Morris (the ‘executors’), to sell two assets: a Rye property and a motor vehicle. The proceeding had been commenced by originating motion on 4 December 2012. There was substantive argument before her Honour on 14 December and again on 21 December 2012.

On the day the orders were made, the appellant, who is the widow of Mr Morris (‘Mrs Morris’), filed a notice of appeal against that part of her Honour’s decision which authorised the sale of the Rye property. Three days later, on 24 December, Mrs Morris filed a summons seeking a stay of that part of the decision, pending the hearing and determination of the substantive appeal. That stay application was due for hearing today.

The Court took the view, however, that for the saving of Court time and for the saving of costs for the estate and the parties, it would be sensible to proceed directly to the hearing of the substantive appeal. There was, in addition, the consideration that — at least as argued on behalf of the executors — the sale of the property was a matter of some urgency. The property in question is a seaside property and — so it is said — is best put on the market in the summer months.

Accordingly, the Court proposed and the parties agreed that the entire appeal be heard today. To that end, the…

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 Morris v Smoel

Details

AGLC: Morris v Smoel [2013] VSCA 11
Case: [2013] VSCA 11
Decision Date: 15 January 2013

CaseChat Overview and Summary

In the case of Morris v Smoel, the matter was heard in the Supreme Court of Victoria. The dispute centred around the administration of the estate of a deceased person, with specific contention over the proposed sale of estate assets and the legitimacy of certain debts incurred by the executors during the administration of the estate. The primary issue at hand was whether the executors' solicitors were owed a significant debt that should be considered in the administration of the estate. Additionally, the court needed to determine whether the judge had correctly exercised his discretion in not considering a late-filed affidavit and whether the judge was obliged to examine the disputed history of the estate's administration.

The court examined whether the judge's refusal to accept the late-filed affidavit constituted a miscarriage of procedural discretion. It was also necessary to ascertain whether the judge was bound to consider the history of the estate's administration, given the limited scope of the judicial advice proceeding. The court emphasised that its power in such matters is discretionary, and it found that no error had been established in the judge's decision. The appeal was ultimately dismissed, with the court applying the principles set out in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand, and referencing the Supreme Court (General Civil Procedure) Rules 2005 (Vic) rule 54.02.

In reaching its decision, the court underscored that the scope of judicial advice proceedings is narrow, focusing primarily on the legality of the executors' actions rather than a comprehensive review of the estate's administration. The late-filed affidavit, which was not received by the judge, did not alter the outcome, as the court's role was not to adjudicate on the historical administration of the estate but to provide guidance on the specific legal issues presented. Consequently, the appeal was dismissed, affirming the lower court's decision.

Orders