Re Bogdanov; Atkins v Drummond (No 2) - [2019] VSC 836

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2018 02722

IN THE MATTER of the estate of VICTOR BOGDANOV, deceased

-and-

IN THE MATTER of an application pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules2015 and/or Section 28 of the Administration and Probate Act1958 and/or the Court’s inherent jurisdiction

ANASTASIA BOGDANOV ATKINS	Plaintiff
- v -
JOHN JOSEPH DRUMMOND and BASIL BOGDANOV (who are sued in their personal capacity and in their capacity as executors of the estate of VICTOR BOGDANOV, deceased)	Defendants

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2019
DATE OF JUDGMENT:	18 December 2019
CASE MAY BE CITED AS:	Re Bogdanov; Atkins v Drummond & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 836

---

WILLS AND ESTATES — Account — Where parties are executors of estate of deceased — Where first defendant ordered to file administration account of estate of deceased — Where plaintiff seeks reimbursement of unauthorised commission and amounts not accounted for — Whether defendants must repay money to estate — Whether second defendant in wilful default in relation to commission paid to co-executor — Whether second defendant acted honestly and reasonably, and ought fairly to be excused for the breach of duty — Trustees Act 1958 (Vic) ss 36 and 67 — Supreme Court (Administration and Probate) Rules 2014 (Vic) r 6.03.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr CR Northrop	Scammell Black Mileo
For the First-named Defendant	In person
For the Second-named Defendant	Mr NP Jones	Felton Farquhar & Co

HER HONOUR:

Introduction

Victor Bogdanov died on 22 September 2015. He was survived by three adult children, including Anastasia Bogdanov Atkins (‘the plaintiff’) and Basil Bogdanov (‘the second defendant’).

Probate of the deceased’s will dated 12 April 2011 was granted on 29 July 2016 to the executors named therein, namely: the plaintiff, the second defendant, and John Joseph Drummond, a former solicitor (‘the first defendant’).[1]
[1]Mr Drummond formerly carried on practice under his former name, Joseph Lo Presti. Mr Drummond’s name was removed from the roll of legal practitioners held by the Supreme Court in 1993 following his conviction and imprisonment for offences arising out of his practice as a solicitor.

The deceased left his estate to the plaintiff and the second defendant in equal shares as tenants in common. His third child was excluded from the will. The value of the estate in the inventory of assets and liabilities filed with the probate application was $440,000.

While the plaintiff and the two defendants were all appointed as executors, the administration of the deceased’s estate was primarily run by the first defendant, with neither the plaintiff nor the second defendant taking an active role.

Background

The background to the disputes between the parties is set out in an earlier ruling in this proceeding.[2]
[2]Re Bogdanov; Atkins v Drummond [2019] VSC 70.

In summary, in November 2017,…

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.

Keep reading for free

Create a free CaseChat account to read Re Bogdanov; Atkins v Drummond (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] VSC 836
Decision Date: 18 December 2019

CaseChat Overview and Summary

The case involves a dispute between Atkins and Drummond, both executors of the estate of a deceased person, Bogdanov. Atkins sought reimbursement of an unauthorised commission and other amounts not accounted for in the administration of the estate. The defendants were ordered to file an administration account of the estate, and Atkins requested that the defendants repay certain sums to the estate. The central legal issues were whether the defendants must repay money to the estate, whether the second defendant was in wilful default regarding the commission paid to the co-executor, and whether the second defendant acted honestly and reasonably, and should be excused for the breach of duty.

The court examined the Trustees Act 1958 (Vic) and the Supreme Court (Administration and Probate) Rules 2014 (Vic). It considered whether the second defendant had acted honestly and reasonably, and whether the first defendant's actions constituted wilful default. The court found that the second defendant had not acted honestly and reasonably in paying the commission to the co-executor and that the first defendant was in wilful default. However, the court concluded that the second defendant ought fairly to be excused for the breach of duty due to acting honestly and reasonably overall.

The court ordered that the defendants repay certain sums to the estate and that the second defendant's breach of duty should be excused due to acting honestly and reasonably. The final orders included the reimbursement of specific amounts to the estate and the excusal of the second defendant's breach of duty, taking into account their overall conduct.

Orders