Poesch v Grosvero - [2013] VSC 596

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

SC I 2013 02080

NATASHA ANNE POESCH	Plaintiff
and
MICHAEL EDWARD GROSVERO and SANDRA BEATRIX GROSVERO (who are sued as the Legal Personal Representatives of the Estate of LUKE JOHN GROSVERO, deceased)	Defendants

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2013
DATE OF JUDGMENT:	1 November 2013
CASE MAY BE CITED AS:	Poesch v Grosvero
MEDIUM NEUTRAL CITATION:	[2013] VSC 596	1st Revision 6 November 2013 para [30]

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ADMINISTRATION AND PROBATE – Family provision – Part IV application – Plaintiff declared bankrupt after commencement of proceeding – whether stay of proceedings - Plaintiff’s cause of action not vested in Official Receiver as Trustee in Bankruptcy – No stay of proceedings – ss 5, 58, 60 & 116 Bankruptcy Act1966 – Administration and Probate Act 1958, s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Paul J Rule	Fischer McCrae
For the Defendants	Ms Amy Sheggerud-Woods, solicitor	Marsh & Maher
For the Official Receiver	Ms Sarah Wood, Solicitor

HIS HONOUR:

Introduction

The Plaintiff applies pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (Part IV) for provision to be made for her out of the Estate of Luke John Grosvero, deceased. She claims to have been the deceased’s domestic partner.
The deceased died intestate on 1 May 2012 at the age of 32. The defendants are his parents and Letters of Administration of the estate were granted to them on 26 October 2012.
The originating motion was issued on 24 April 2013. It was not supported by any affidavit at the time. No summons for directions was issued, however, until 17 October 2013, and then by the defendants.
When the summons came on for hearing in the Part IV directions list on 22 October 2013, the Plaintiff’s trustee in bankruptcy appeared and tendered without objection a certificate of Appointment of Trustee under the Bankruptcy Act 1966 (the Bankruptcy Act), showing that the Plaintiff had been declared bankrupt on 8 October 2013 and sought time in which to make an election under s 60 of the Bankruptcy Act as to whether to take over the conduct of the proceeding.
Ms Englefield, who appeared for the Plaintiff, contended that either s 60(4) of the Bankruptcy Act was applicable or claims under Part IV were not part of the property divisible amongst the Plaintiff’s creditors and not, therefore, property at all for the purposes of ss 58 and 116 of the Bankruptcy Act.
No one who appeared that day had the relevant authorities, so the matter was adjourned for the parties to make appropriate submissions. This the defendant has done.
Background
I was told that the bankruptcy arose in the following circumstances. The deceased’s parents applied to the Court for letters of administration of their son’s estate. The Plaintiff lodged a caveat against the grant of the letters of administration. The defendants applied…

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 Poesch v Grosvero

Details

AGLC: Poesch v Grosvero [2013] VSC 596
Case: [2013] VSC 596
Decision Date: 1 November 2013

CaseChat Overview and Summary

The parties involved in this case are Poesch and Grosvero. The dispute revolves around a family provision application under Part IV, where the plaintiff had been declared bankrupt after initiating the proceedings. The primary legal issue before the court was whether the proceedings should be stayed due to the plaintiff's bankruptcy. The court had to determine if the plaintiff's cause of action was vested in the Official Receiver as the Trustee in Bankruptcy. The court considered sections 5, 58, 60, and 116 of the Bankruptcy Act 1966 alongside section 91 of the Administration and Probate Act 1958 to reach its conclusion. The court found that the plaintiff's cause of action was not vested in the Official Receiver, thereby ruling that the proceedings should not be stayed. The court's decision was grounded in the specific provisions of the relevant statutes, ensuring that the plaintiff's right to pursue the family provision application was not unjustly impeded by the bankruptcy proceedings.

Orders