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…

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 Polites v Salkanovic

Details

AGLC: Polites v Salkanovic [2025] SASCA 74
Case: [2025] SASCA 74
Decision Date: 3 July 2025

CaseChat Overview and Summary

This matter concerned an appeal by Mr Polites, the executor of an estate, against decisions made by a primary judge. The primary judge had granted letters of administration *ad colligenda bona* to Ms Hooper and refused to grant a stay of those proceedings pending Mr Polites' appeal. Mr Salkanovic, a beneficiary of the estate, had sought the appointment of an administrator *ad colligenda bona* to enable him to bring a claim for further provision from the estate and to investigate the executor's assertions of insolvency and a significant debt owed by the estate.

The legal issues before the appellate court were whether the primary judge erred in refusing to grant a stay of proceedings pending Mr Polites' appeal against the grant of letters of administration *ad colligenda bona*, and whether leave to appeal that refusal should be granted. The court was required to consider the principles governing stays pending appeal, which involve assessing the interests of justice by weighing the apparent merits of the proposed appeal against the competing prejudices to the parties.

The appellate court noted that the primary judge had accepted that there were likely to be credible and arguable grounds of appeal and serious issues for determination. However, in considering the balance of convenience, the primary judge had found that while Mr Salkanovic's ability to bring a claim for provision was preserved, he also faced prejudice from the ongoing risk to the estate's position due to a lack of investigation and administration. This prejudice was considered in light of an undertaking by the executor not to deal with the estate's shares other than in the ordinary course of business. Ultimately, the appellate court was not satisfied that the interests of justice favoured granting leave to appeal the refusal of the stay.

Consequently, the court dismissed Mr Polites' applications for a stay pending appeal and for permission to appeal the primary judge's refusal of that stay.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.