Polites v Salkanovic

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.