Orlanski v Spiegel (No 2) - [2015] VSC 709

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROBATE LIST

S CI 2015 000730

IN THE MATTER of the Will and Estate of JACOB MOSZKOWICZ, deceased

AND IN THE MATTER of the MOSZKOWICZ FAMILY TRUST NO 2 and the MOSZKOWICZ FAMILY TRUST NO 3

AND IN THE MATTER of an application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 for the determination of questions arising in the administration of the said estate and the said trusts

BETWEEN:

HENRY JOSEPH ORLANSKI (who sues as the Executor of the Will and Estate of JACOB MOSZKOWICZ, deceased) and others (according to the attached schedule)	Plaintiffs
v
DINA SPIEGEL and others (according to the attached schedule)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2015
DATE OF JUDGMENT:	9 December 2015
CASE MAY BE CITED AS:	Orlanski v Spiegel (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 709

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TRUSTS – Discretionary trust – Questions asked by executor – Whether person had assumed office as guardian of trust – Evidence that person had not assumed office – Questions answered accordingly – Supreme Court (General Civil Procedure) Rules 2005 R 54.02.

COSTS – Executor’s proceeding seeking answers to questions concerning estate – Entitlement of beneficiaries to order for legal costs – Fund from which costs to be paid.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr V Ruta	Jack Bock Lawyers
For the first and second Defendants	Mr R Boaden	Strongman & Crouch
For the third defendant	Mr L Glick QC	SBA Law
For the fourth defendant	In person
For the fifth defendant	Mr A J Verspaandonk	HWL Ebsworth Lawyers

SCHEDULE OF PARTIES

S CI 2015 00730

BETWEEN:

HENRY JOSEPH ORLANSKI (who sues as the Executor of the Will and Estate of JACOB MOSZKOWICZ, deceased) Firstnamed Plaintiff

- and -

JAKEN NOMINEES PTY LTD (ACN 005 107 059) (as Trustee of the Moszkowicz Family Trust No 2) Secondnamed Plaintiff

- and -

GETEMA PTY LTD (ACN 005 117 591) (as Trustee of the Moszkowicz Family Trust No 3) Thirdnamed Plaintiff

- and -

DINA SPIEGEL Firstnamed Defendant

- and -

REBECCA MOSZKOWICZ Secondnamed Defendant

- and -

RAPHAEL MOSZKOWICZ Thirdnamed Defendant

- and -

JULIA MOSZKOWICZ Fourthnamed Defendant

- and -

ESTHER FELDMAN Fifthnamed Defendant

HIS HONOUR:

I delivered judgment in this matter on 25 November 2015 (‘the first judgment’).[1] However, some issues remained for determination.
[1]Orlanksi v Spiegel [2015] VSC 662.

Was Ms Eschell a guardian or appointor of the Moskowicz Family Trust No 3?

I deferred answering questions 8 and 11 to 13, which were asked by the plaintiffs pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005, because the question of whether Ms Gina Eschell had taken up office as a guardian and appointor under the Moskowicz Family Trust No 3 (‘the No 3 Trust’) was uncertain following the filing of an affidavit by the solicitor for the first and second…

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.

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Details

Case: [2015] VSC 709
Decision Date: 9 December 2015

CaseChat Overview and Summary

The case of Orlanski v Spiegel (No 2) involved the parties as executors of an estate seeking answers to specific questions under a discretionary trust. The dispute centred on whether a particular individual had assumed the office of guardian of the trust and related matters. The Supreme Court of Victoria was the court that heard and decided the case. The legal issues that the court needed to resolve were whether the executors were entitled to the answers to the questions posed and, if so, who was responsible for the legal costs associated with the proceeding.

The court examined the Supreme Court (General Civil Procedure) Rules 2005, particularly Rule 54.02, which deals with the procedure for obtaining answers to questions in relation to an estate. The court noted that the executors had provided evidence that the individual in question had not assumed the office of guardian of the trust. Based on this evidence, the court determined that the answers to the questions could be given in the manner requested by the executors. Furthermore, the court considered the issue of legal costs and held that the beneficiaries were entitled to an order for those costs. The court concluded that the costs should be paid from the estate fund.

In summary, the court found that the executors were entitled to the answers to the questions posed under the discretionary trust, given the evidence provided. The court also ruled that the beneficiaries were entitled to an order for the legal costs of the proceeding, with those costs to be paid from the estate fund. This decision ensures that the executors can proceed with the administration of the estate while also considering the rights of the beneficiaries in relation to legal costs.

Orders