Re Giannakis; Giannakis v Cyngler & Anor - [2024] VSC 693

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 04553

IN THE MATTER of an application pursuant to Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for directions in relation to the administration of the Estate

- and –

IN THE MATTER of the Will and Estate of NICK GIANNAKIS, deceased

BETWEEN:

SARA GIANNAKIS (a minor who sues by her litigation guardian SHEENA SALIM GIANNAKIS)	Plaintiff
and
JACK CYNGLER and ARTHUR GIANNAKIS (in their capacity as executors and trustees of the will and estate of NICK GIANNAKIS, deceased)	Defendants

---

JUDGE:	GRAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2024, last submission 22 April 2024
DATE OF JUDGMENT:	12 November 2024, first revision 19 December 2024
CASE MAY BE CITED AS:	Re Giannakis; Giannakis v Cyngler & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 693

---

PROBATE — Practice and procedure — Proceeding on behalf of minor beneficiary of deceased estate against executors to furnish accounts and deliver up documents relating to estate and a related trust — Proposed compromise submitted by parties — Unpublished reasons for decision of a judicial registrar refusing approval of a compromise and raising issues for response by executors — Executors subsequently agreed to be discharged — Orders made by consent discharging executors — Former executors sought an order that the judicial registrar’s reasons for decision remain unpublished — Former executors also sought orders that an exhibit and affidavits not be available for inspection — Whether publication would not be in the interests of justice — Whether reasons are unfairly prejudicial and publication serves any remaining purpose — Administration and Probate Act 1958 s 34; Supreme Court (General Civil Procedure) Rules 2015 r 28.05(4) — Civil Procedure Act 2010 ss 7–9, 47(1)(a) — Open Courts Act 2013 ss 8A, 16.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah	HQ Law
For the Defendants	Mr S Pitt SC	CKL Lawyers

HIS HONOUR:

A Judicial Registrar provided written reasons to the parties in this proceeding in which she explained her refusal of a proposed compromise involving a minor and raised issues for response by the defendants, including the question of whether the defendants should continue in their office as executors of the deceased’s estate.

Should I order that the reasons remain unpublished and that affidavit material filed by the defendants in response remain confidential?

I have decided that the Judicial Registrar’s reasons should be published, subject to the excision of certain passages, in the form set out in the Annexure to these reasons. The affidavit material, however, will remain confidential.

Introduction

The deceased died on 23 June 2020, leaving his only child, the plaintiff, then aged 11 years old.

The defendants are a solicitor, Mr Cyngler of CKL Lawyers, and the deceased’s brother, Mr Arthur Giannakis.

By his Will made on 7 November 2012, the deceased appointed the defendants as executors and, after some minor gifts to Mr Arthur…

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 Giannakis; Giannakis v Cyngler & Anor 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: [2024] VSC 693
Decision Date: 12 November 2024, first revision 19 December 2024

CaseChat Overview and Summary

The case of Re Giannakis; Giannakis v Cyngler & Anor involved a dispute in the Supreme Court of Victoria concerning a deceased estate and a related trust. The minor beneficiary, represented by the Public Trustee, sought an order from the executors, Cyngler and Anor, to furnish accounts and deliver documents relating to the estate and trust. A compromise proposed by the parties was submitted to a judicial registrar who refused to approve it and required a response from the executors. Subsequently, the executors agreed to be discharged. The former executors then sought an order that the judicial registrar’s reasons for decision remain unpublished, and that certain exhibits and affidavits not be available for inspection.

The legal issues before the court were whether the publication of the judicial registrar’s reasons would be in the interests of justice, and if the reasons were unfairly prejudicial and if publication served any remaining purpose. The court had to consider provisions from the Administration and Probate Act 1958, Supreme Court (General Civil Procedure) Rules 2015, Civil Procedure Act 2010, and Open Courts Act 2013. The court also had to weigh the principle of open justice against the potential prejudice to the parties.

The court found that the reasons for decision were not unfairly prejudicial, and their publication would not be in the interests of justice as the proceedings had concluded with the discharge of the executors. The court held that the reasons could be published and the former executors’ application for an order preventing publication and restricting access to certain documents was dismissed. The executors were discharged by consent, and the court made orders consistent with this arrangement.

In conclusion, the court determined that the reasons for decision should be published as it would not be in the interests of justice to prevent their publication. The former executors’ application for orders to remain unpublished and to restrict access to certain documents was dismissed. The court made orders discharging the executors by consent and allowing the publication of the reasons for decision.

Orders