Novoselac v Cybulski

[2002] VSC 564

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7728 of 2002

MICHAEL NOVOSELAC AND ERIC KONTEK (AS EXECUTORS OF THE WILL OF HELENA KONTEK DECEASED)	Plaintiffs
v
NEONILA CYBULSKI (AS EXECUTRIX OF THE WILL OF HELENA KONTEK DECEASED)	Defendant

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 DECEMBER 2002
DATE OF JUDGMENT:	5 DECEMBER 2002
CASE MAY BE CITED AS:	NOVOSELAC & ANOR v. CYBULSKI
MEDIUM NEUTRAL CITATION:	[2002] VSC 564

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removal of executors – Executrix refusing to act – Administration and Probate Act 1958, s.34(1)(c)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R.C. Wells	Pearsons & Novoselac
For the Defendant	Mr G. Baker	Pearce Webster Dugdales

HIS HONOUR:

1. The first and second-named plaintiffs and the defendant are the executors of the will and estate of Helena Kontek (deceased).  The principal assets in the estate consist of four properties of the deceased situated at 84 Hoffmans Road, Essendon; 133 Lincoln Road, Essendon; 33 King Street, Essendon; and a property at Ballan.  The three properties at Essendon have been advertised for sale and the auctions in respect to them are scheduled to take place on Saturday next, 7 December.

1. I now have before me an originating motion filed in the Court by the plaintiffs whereby they seek to have the defendant removed as an executor of the estate pursuant to the provisions of s.34(1)(c) of the Probate and Administration Act 1958.  The application is supported by three affidavits sworn by the first-named plaintiff who is a solicitor of this Court.  The application is opposed by the defendant.  The basis upon which the application is made, expressed quite generally, is that the defendant simply has failed to perform her duties as an executor of the estate and, indeed, since the death of the deceased has done everything she can to impede the plaintiffs in that regard.

1. Having regard to the material that has been placed before the Court, I am satisfied that the defendant has failed to assist her co-executors to properly administer the estate of her late mother and, in fact, in my opinion, to positively hinder their endeavours in that regard.

1. In the circumstances, I consider that it can properly be said that the defendant's failure to properly assist the plaintiffs has been such as to amount to a refusal on her part to act in the office of executor within the meaning of s.34(c) of the Act and justifies the making of an order removing her from that office.  A failure to do so on the part of the Court will result in the cancellation of the auctions on 7 December causing a significant financial loss to the estate of the deceased.

1. In that regard I consider that the material placed before the defendant concerning what she says is the true value of the three properties which  is unsupported by any appropriate evidence of valuations of the properties by a competent valuer, seems to me to have little relationship to their true value.

1. Because the second plaintiff is himself interested in bidding for one of the three properties, he very properly now seeks an order discharging him as executor of the estate thereby clearing the way for him to do so.

1. The first-named plaintiff has given an undertaking, through his counsel, that the properties will not be sold for prices less than the reserve prices set out in Exhibit 22 to the affidavit of the first plaintiff sworn 4 December 2002.

1. In the light of that undertaking I now make the following orders in the matter. 

1.I discharge the second-named plaintiff, Eric Kontek, as an executor of the will of Helena Kontek (deceased). 

2.I remove the defendant, Neonila Cybulski, as an executrix of the said estate pursuant to the provisions of s.34(1)(c) of the Probate and Administration Act 1958. 

3.I declare that the first-named plaintiff, Michael Novoselac, is now the sole executor of the estate of Helena Kontek (deceased) and is authorised to execute transfers of the properties the subject of the auctions to be conducted on 7 December 2002, those properties being the properties referred to in the said Exhibit 22 to the affidavit of the first-named plaintiff.

1. I order that the costs of the plaintiffs of this proceeding be taxed on a solicitor own client basis and be retained by the first-named plaintiff from the defendants proceeds of the said sales.

1. I direct that this order be prepared by the solicitors for the plaintiffs and be brought to me within 48 hours for authentication.

1. I will vacate the directions hearing that has been set down on 19 December 2002.

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