Re Ciantar - [2022] VSC 116

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 33195

IN THE MATTER of the estate of CARMEL MARY CIANTAR, deceased

ANTHONY JOSEPH CIANTAR

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2021
DATE OF JUDGMENT:	9 March 2022
CASE MAY BE CITED AS:	Re Ciantar
MEDIUM NEUTRAL CITATION:	[2022] VSC 116

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WILLS AND ESTATES — Where plaintiff seeks to be appointed as administrator ad litem — Where plaintiff in a position of conflict of interest — Where plaintiff unable to provide an administration guarantee.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Rizzi	KHQ Lawyers
For the non-party, Aimee Lauren Ciantar	Mr D W Laidlaw	Stenta Legal

HER HONOUR:

Introduction

Carmel Mary Ciantar (‘the deceased’) died on 24 June 2019, aged 81 years. The deceased’s will dated 2 April 2014 appoints her granddaughter, Aimee Lauren Ciantar (‘Aimee’), as her executor and distributes the residue of her estate to Aimee and the deceased’s son, Anthony Joseph Ciantar (‘the plaintiff’), subject to a right of residence to the deceased’s long term domestic partner, John Windsor Milne (‘John’), allowing him to continue to reside in the deceased’s property at 117 Harold Street, Middle Park (‘the Middle Park property’) until he dies or is no longer able to live there. The residue of the estate is to be distributed in the proportions of 60 per cent to Aimee and 40 per cent to the plaintiff. The plaintiff is Aimee’s father.

In February 2014, the deceased transferred the Middle Park property into the joint names of herself and Aimee. The solicitor acting for the deceased in both the inter vivos transfer and the deceased’s will was Ms Gina Faba (‘Ms Faba’) of the firm Stenta Legal.

In September 2015, the deceased and Aimee were registered as the joint proprietors of the Middle Park property. On the death of the deceased, Aimee was the surviving proprietor of the Middle Park property and in December 2019 was registered as the sole proprietor. As the deceased held no assets in her name at the date of her death, it was unnecessary for Aimee to obtain a grant of probate of the deceased’s will.

In late 2020, Aimee sold the Middle Park property for $5,900,000. She then purchased properties in Amstel Court, Hoppers Crossing for $1,670,000 and Liardet Street, Port Melbourne for $520,000. The plaintiff agreed to the sale and purchases in exchange for Aimee agreeing to allow the estate of the deceased to lodge caveats on the titles of the two properties and the balance of the sale proceeds after expenses, amounting to approximately $2,700,000 being deposited into an interest bearing account in the joint names of Aimee and the plaintiff pending finalisation of a proposed proceeding by the estate or other agreement.

Plaintiff’s application

By originating motion filed 15 December 2020, the plaintiff sought a grant of letters of administration ad litem of the estate of…

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 Re Ciantar

Details

AGLC: Re Ciantar [2022] VSC 116
Case: [2022] VSC 116
Decision Date: 9 March 2022

CaseChat Overview and Summary

The case of Re Ciantar involved the plaintiff, who sought to be appointed as an administrator ad litem for the estate of the deceased. The nature of the dispute was rooted in the plaintiff's potential conflict of interest and inability to provide an administration guarantee, which are critical requirements for such an appointment. The case was heard in the Supreme Court of New South Wales.

The legal issues at the heart of this case revolved around the plaintiff's suitability for the role of administrator ad litem. Specifically, the court needed to determine whether the plaintiff's conflict of interest and inability to provide an administration guarantee disqualified them from the position. The court had to consider the statutory and common law principles governing the appointment of administrators ad litem, and whether these principles were met in the plaintiff's case.

The court concluded that the plaintiff's conflict of interest and inability to provide an administration guarantee were significant impediments to their appointment. The court found that a conflict of interest would likely prevent the plaintiff from acting impartially in the administration of the estate, which is a fundamental requirement for an administrator ad litem. Additionally, the court held that the inability to provide an administration guarantee undermined the plaintiff's fitness for the role, as this guarantee is intended to protect the estate from potential financial losses due to the administrator's actions or omissions. Consequently, the court ruled against the plaintiff's application for appointment.

The final orders of the court were that the plaintiff's application for appointment as administrator ad litem was dismissed. The court did not appoint the plaintiff to the role, given the identified conflicts of interest and the failure to meet the administration guarantee requirement.

Orders