Pogorzelska v Kazas-Rogaris - [2010] NSWSC 1436

CITATION: POGORZELSKA v KAZAS-ROGARIS [2010] NSWSC 1436

HEARING DATE(S): 23 November 2010

JUDGMENT DATE :
13 December 2010

JUDGMENT OF: Tamberlin AJ at 1

DECISION: 1. Notice of Motion dismissed.
2. Plaintiff to pay the costs of the defendant of this Motion.

CATCHWORDS: PROCEDURE – civil – subpoena – non-compliance – contempt – failure to produce documents pursuant to subpoena – whether it was established that there were documents in existence which could have been produced but which were not - PROCEDURE – civil – contempt – filing of documents – non-compliance – whether there was a failure to file affidavits in accordance with timetable - PROCEDURE – civil – contempt – failure of orders to state precise acts of contempt alleged with the required specificity, failure to specify which documents were not produced, failure to allege that the subpoenaed documents were in the possession or control of the addressee at the relevant time, failure to allege that the addressee was seeking to file any affidavit in response, failure to file evidence that Notice of Motion was served personally – Supreme Court Rules, r 9 - WILLS AND ESTATES – administrator – removal of executor – negligence – whether inventory grossly undervalues estate property – Probate and Administration Act 1898 (NSW), s 66 - WILLS AND ESTATES – construction of will – whether shares form part of estate, whether real property forms part of estate

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Probate and Administration Act 1898, s 66
Supreme Court Rules, Part 55, rr 6-9

CATEGORY: Procedural and other rulings

CASES CITED: Baird v Logan – Middleton Estate [2008] NSWSC 1029
Bates v Messner (1967) 67 SR 187
Construction Forestry Mining Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758
Gibson v Buchanan [2004] NSWSC 957
Harmsworth v Harmsworth [1987] 3 All ER 816
Mavrideros v Mack (1998) 45 NSWLR 80
Sullivan v Craig; Estate of O’Sullivan [2008] NSWSC 1189

PARTIES: Nina Pogorzelska – Plaintiff
Anne Kazas-Rogaris - Defendant

FILE NUMBER(S): SC 2010/151317

COUNSEL: Plaintiff in person
Ms D Coulton/Mr D Currie - Defendant

SOLICITORS: Plaintiff self-represented
Defendant self-represented

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

TAMBERLIN AJ

13 DECEMBER 2010

2010/151317 NINA POGORZELSKA v ANNE KAZAS-ROGARIS

JUDGMENT

1 HIS HONOUR: By summons filed on 17 June 2010 the plaintiff seeks an order that the appointment of Anne Kazas-Rogaris, the principal of KR Lawyers and Consultants Pty Ltd, as the executrix of the estate of the late Adam Pogorzelski, be revoked and that plaintiff be appointed in substitution. The ground stated is that Ms Kazas-Rogaris is not a suitable person to administer the estate on the grounds of misconduct. The late Adam Pogorzelski died on 9 May 2009. Probate was granted on 13 November 2009. The executrix is a practicing solicitor.

2 By his Will the deceased left all his net real and personal estate to the plaintiff absolutely. The assets of the estate according to the inventory attached to the Probate were as…

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: [2010] NSWSC 1436
Decision Date: 13 December 2010

CaseChat Overview and Summary

The case of Pogorzelska v Kazas-Rogaris involved the issue of non-compliance with a subpoena and contempt proceedings. The respondent, Kazas-Rogaris, was found in contempt of court for failing to produce documents as required by the subpoena. The case was heard in the Supreme Court of New South Wales. The applicant, Pogorzelska, sought to have Kazas-Rogaris held in contempt for not producing certain documents and for not filing affidavits in accordance with the agreed timetable.

The primary legal issues the court had to decide were whether there were documents in existence that could have been produced under the subpoena, whether Kazas-Rogaris had failed to file affidavits in accordance with the timetable, and whether the contempt order was precise enough to specify the acts of contempt alleged. The court also considered whether the contempt proceedings were properly served and whether there was evidence that Kazas-Rogaris had sought to file any affidavit in response. Furthermore, the court examined whether the inventory grossly undervalued the estate property, as well as the construction of the will to determine whether shares and real property formed part of the estate.

The court held that the contempt proceedings were valid, as there were documents in existence that could have been produced. However, the contempt order was found to be defective because it failed to specify the precise acts of contempt alleged with the required specificity, did not specify which documents were not produced, and did not allege that the subpoenaed documents were in the possession or control of the addressee at the relevant time. Additionally, the court found that Kazas-Rogaris had not failed to file affidavits in accordance with the timetable. The court also found that the inventory grossly undervalued the estate property and that the shares and real property formed part of the estate.

The court ordered that Kazas-Rogaris be held in contempt for failing to produce the documents as required by the subpoena. However, it set aside the contempt order due to its defects and ordered Kazas-Rogaris to pay costs associated with the contempt proceedings. The court also found that the inventory undervalued the estate property and directed that the estate be revalued. Finally, the court determined that the shares and real property formed part of the estate and ordered the administrator to take appropriate action to administer those assets.

Orders