Polites v Salkanovic - [2025] SASCA 74

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
POLITES v SALKANOVIC
[2025] SASCA 74
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice S Doyle and the Honourable Justice Stein)
3 July 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - GENERALLY
Primary judge made an order appointing an administrator ad colligenda bona. He also refused a stay pending appeal.
Application for a stay renewed before the Court of Appeal, in conjunction with application for leave to appeal the primary judge’s refusal of a stay.
Held (per Court), dismissing both applications:
1.There being no material change in the relevant circumstances, the renewed application for a stay was an abuse.
2.The application for permission to appeal should be refused on the basis that the proposed appeal has only modest prospects, and relates to a matter of practice and procedure and not a matter involving any matter of principle or general importance.

Salkanovic v Polites [2025] SASC 86; Salkanovic v Polites (No 2) [2025] SASC 101, considered.

POLITES v SALKANOVIC
[2025] SASCA 74
Court of Appeal – Civil: S Doyle JA and Stein AJA

THE COURT (ex tempore): The applicant (George Polites) is the executor of the estate of his deceased mother (Florence Polites). The respondent (Markas Salkanovic) is a grandson of the deceased and a beneficiary under her will.
On 10 December 2024, the primary judge made an order granting Mr Salkanovic’s application for letters of administration ad colligenda bona in favour of a solicitor, Sarah Hooper, in respect of the deceased’s estate. His Honour published his reasons for this order on 30 May 2025.[1]
[1] Salkanovic v Polites [2025] SASC 86.
Mr Polites has appealed this order, and that appeal is listed for hearing by the Court of Appeal in September 2025.
On 20 December 2024, the primary judge ordered an interim stay of his order. Mr Polites’ application for a stay pending appeal was argued on 14 January 2025 and, on 18 June 2025, the primary judge made orders refusing that stay, and revoking the interim stay he had granted back on 20 December 2024. He published his reasons for these orders.[2] His Honour then ordered an interim stay for seven days to enable Mr Polites to apply to the Court of Appeal. A judge of the Court of Appeal extended that interim stay pending hearing and determination of the applications and appeal filed by Mr Polites.
[2] Salkanovic v Polites (No 2) [2025] SASC 101.
The Court has before it today two applications and an appeal brought by Mr Polites. The two applications are (i) a renewed application for a stay pending appeal from the Court of Appeal, and (ii) an application for permission to appeal the primary judge’s refusal of a stay pending appeal. These applications were listed for hearing in conjunction with Mr Polites’ appeal against the primary judge’s refusal of a stay (in the event that he is granted permission to appeal).
Before addressing these applications directly, it is appropriate to commence by outlining the judge’s decisions both to grant letters of administration ad colligenda bona and to refuse a stay pending appeal.
Grant of letters of administration ad colligenda bona
It is not necessary to summarise in any detail the primary judge’s reasons for appointing Ms Hooper as administrator ad colligenda bona. They are set out in his Honour’s published reasons. It is sufficient to observe that Mr Salkanovic is a beneficiary of the estate. He was left a bequest in the form of an annual gift, for a period of three years from the deceased’s death, of all income which accrues from an account known as the ‘Gem Holdings Pty Ltd M3 Account’; and thereafter in an annual amount of $5,000 until the account is exhausted. The value of this bequest is unclear.
Mr Polites, as executor, has not sought a grant of probate and does not intend to do so. His position is that he has fully administered the estate and that it is insolvent, with a deficit of approximately $2.8 million. This deficit is a consequence of what is said to be a debt of approximately $4.4 million owed by the estate to a company controlled by the executor.
The primary judge was satisfied that Mr Salkanovic brought an application for the appointment of an administrator ad colligenda bona both (i) for the purpose of enabling him to bring a claim for further provision from the estate (and to do so urgently before new legislation came into effect at the commencement of this year); and (ii) to investigate the executor’s assertions that the estate is insolvent and as to the debt said to underpin that insolvency.
The primary judge ultimately accepted that Mr Salkanovic had a sufficient interest in the estate, and there was a sufficient basis for concern as to the appropriateness of the executor’s conduct, to justify the appointment of Ms Hooper as administrator ad colligenda bona for the purposes of preserving and getting in the assets of the estate, and investigating its assets and liabilities (including the asserted debt of $4.4 million).
Primary judge’s refusal of a stay pending appeal
The principles governing the grant of a stay of execution pending appeal were not, and are not, in dispute. They involve consideration of whether it is in the interests of justice to grant a stay, having regard to not only the apparent merits of the proposed appeal, but also the competing prejudice to the parties in the event that a stay is, or is not, granted.
Again, it is not necessary to summarise in any detail the primary judge’s reasons. It is sufficient to note that his Honour accepted that there are likely to be ‘credible and arguable grounds of appeal available and serious issues for determination in respect of any challenge to the orders made’. For the purposes of the application for a stay, his Honour was ‘prepared to proceed on the basis that the appeal is arguable’.
In addressing the balance of convenience, the judge commenced with prejudice to Mr Salkanovic in the event a stay is granted. It was accepted that Mr Salkanovic’s ability to bring a claim for provision has been preserved. However, he also claimed prejudice associated with an ongoing risk to the position of the estate whilst it was not being investigated and administered. Whilst noting this, the judge appears to have accepted the limited significance of this in circumstances where the executor was prepared to give an undertaking not to transfer, deal with or diminish the value of the shares other than in the ordinary course of business.
However, on the evidence, the executor was also only able to identify limited prejudice. That prejudice consisted only of (i) professional fees that might be incurred through any work undertaken Ms Hooper (both in terms of her fees, and the costs associated with responding to requests she might make), and (ii) the possibility that Mr Polites, and other entities in which he was interested, might be required to divulge documents or information which would otherwise be confidential. In not attaching much weight to this prejudice, the judge took into account his expectation that the executor should have been responsive to the contemplated type of requests for information in any event. His Honour did not consider that the executor had established any real risk of irreparable prejudice if the stay were not granted and the appeal were ultimately to succeed. His Honour did not consider any prejudice that might be suffered by the Polites group of companies, as opposed to the estate, as a matter of any weight.
His Honour did not consider that a stay was in the interests of justice and so declined the application.
Renewed application for a stay pending appeal
Mr Polites seeks to renew his application for a stay pending appeal before this Court. A party seeking to appeal an order may bring an application for a stay pending appeal to the primary judge or to the Court of Appeal. The judge first seized of the application for a stay pending appeal then has a discretion to determine who should hear that application, including whether it should be heard by a single judge (whether from the General Division or the Court of Appeal) or by the Court of Appeal. If the latter, the Court of Appeal may sit a bench of two or a bench of three.
However, in the ordinary course, an appellant cannot bring two applications for a stay. If the party seeking the stay wishes to challenge the refusal of an earlier application for a stay, this should ordinarily be pursued through an application for leave to appeal the refusal of the stay. In the absence of a material change in the relevant circumstances, an attempt to bring a further application for a stay pending appeal will ordinarily involve an abuse of process.
In seeking to renew his application for a stay before the Court of Appeal, Mr Polites contends that there has been a material change in the relevant circumstances. In particular, he relies upon the fact that when his application for a stay was first argued, he did not have the benefit of the primary judge’s reasons for granting Mr Salkanovic’s application to grant letters of administration. He contends that now that he has those reasons, he is in a better position to articulate the merits of his appeal from that order; and that this Court is in a correspondingly better position than was the primary judge to assess those merits.
The difficulty with this argument is that not only are the merits of the proposed appeal of limited significance in an application for a stay pending appeal, but also the judge proceeded on an assumption that the appeal was not only genuine or bona fide, but was arguable.
It is true that in some cases, where it can be said the merits of the proposed appeal are particularly strong, this may weigh materially in favour of the grant of a stay. However, such cases are likely to be rare given the relatively summary or rudimentary approach that it is appropriate to take to an assessment of the merits on an interlocutory hearing of an application ahead of the appeal. Counsel for Mr Polites made several submissions, both in writing and orally, addressing the merits of the proposed appeal. These included submissions challenging what he contends were misapprehensions as to the nature and scope of a grant of administration ad colligenda bona, as to the limited basis upon which the application for appointment of an administrator had been brought, and the significance of Mr Salkanovic’s limited standing. Whilst these submissions were successful in giving content and colour to the judge’s assumption that an appeal would be arguable, bearing in mind the summary or rudimentary approach that is appropriate, we are not satisfied that they went as far as establishing that the proposed appeal has strong prospects of success.
It follows that we do not accept that there has been a material change in the relevant circumstances. We dismiss the application to the Court of Appeal to renew the application for a stay pending appeal.
Leave to appeal the primary judge’s refusal of a stay
Turning to Mr Polites’ application for permission to appeal the primary judge’s refusal of a stay pending appeal, this involves consideration of three interrelated issues: whether there is sufficient doubt about the decision to warrant its reconsideration; the existence of a point of principle or general importance; and the injustice to the appellant if the decision stands.
As to the merits of the proposed stay appeal, it does not have obvious merit. It seems to us that the primary judge’s reasons involved an orthodox application of settled principles. Having accepted that the proposed appeal had arguable merit, his Honour identified and weighed the competing prejudice likely to be suffered by the parties depending upon whether or not a stay was granted. Whilst acknowledging that there might be some prejudice (in the nature of the incurring of professional fees and potential access to commercially sensitive information that might not otherwise be available to Mr Salkanovic), the judge was entitled to take the view that this was not irreparable and limited in weight. Whilst we accept that there may be some tension between the primary judge’s description of the work to be done by Ms Hooper when assessing the estate’s prejudice, as opposed to the work that it might be said that his Honour’s reasons for appointing her tended to assume was necessary, we do not think his Honour’s reasons suggest any significant misunderstanding of the estate’s prejudice in the event that a stay were not granted.
In our view, the prospects of successfully appealing the primary judge’s refusal of a stay pending appeal are at best modest. The proposed appeal does not raise any matter of general principle or importance. Indeed, it raises a matter of mere practice and procedure, in respect of which the Court is usually reluctant to grant leave to appeal. We do not think the nature of the appeal in this case takes it out of that category of case. Any injustice that Mr Polites or the estate might suffer from leaving the primary judge’s stay decision in place is not sufficient to warrant a grant of permission to appeal.
We are not satisfied that the interests of justice favour a grant of leave to appeal the primary judge’s refusal of a stay.
Conclusion
We dismiss Mr Polites’ applications for a stay pending appeal, and for permission to appeal the primary judge’s refusal of a stay pending appeal.