Re Kordos - [2024] VSCA 84

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2023 0030
IN THE MATTER OF THE WILL AND ESTATE OF ERMIONI KORDOS (IN THE WILL CALLED ERIMONE KORDOS), DECEASED
ZAFIRI KORDOS	Applicant
AND
EVAAN KORDOS	Intervener

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JUDGES:	NIALL and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2024
DATE OF JUDGMENT:	2 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 84
JUDGMENT APPEALED FROM:	[2023] VSC 14 (McMillan J)

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WILLS AND ESTATES – Where applicant seeks limited grant as administrator ad litem – Whether judge erred in giving insufficient reasons despite factors weighing in favour of grant – No error in judge’s weighing of competing considerations – Whether judge erred in finding that applicant not sufficiently independent – No error in judge’s consideration of applicant’s independence – Whether judge erred in consideration of applicant’s inability to provide guarantee – No error in consideration of inability to provide guarantee – Whether judge erred in finding risk of maladministration – No error established – Whether judge gave insufficient weight to factors weighing in favour of grant – No error in weight given to such factors – Leave to appeal refused.

Administration and Probate Act1958, ss 22, 27 and 57.

Greenway v McKay (1911) 12 CLR 310; Hunter v Transport Accident Commission [2005] VSCA 1; Re Tratt [1980] VR 657, considered.

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Counsel
Applicant:		Mr J Rizzi with Mr NJ Baum
Intervener:		Mr WF Gillies
Solicitors
Applicant:	Kyriacou Lawyers
Intervener:	TLM Law

NIALL JA
LYONS JA:

Introduction

The applicant applied to a judge in the Trial Division of this Court to be appointed as the administrator ad litem of the estate of his late mother, Ermioni Kordos (‘the deceased’). At the time of the application, probate had not been granted in respect of the estate which, pursuant to a will, the validity of which is not in issue, was left entirely to the applicant’s nephew, Evaan Kordos (‘Evaan’).[1]
[1]Evaan took after his father (the applicant’s brother), who was the primary beneficiary but who predeceased his mother.
No provision was made in the will for the applicant and he has indicated an intention to lodge an application under pt IV of the Administration and Probate Act1958 (‘the Act’) for provision in his favour. At the present time, there are no assets in the estate. The applicant apprehends that, before his mother died, his mother’s main asset, being a residential property, was sold and the half of the net sale proceeds to which she was entitled, approximately $600,000, was transferred to his brother, Vasilios Kordos (‘Vasilios’).[2] At the time of that transfer, Vasilios held a power of attorney in respect of their mother.
[2]The residential property was held jointly by the deceased and Vasilios.
It is in these circumstances that the applicant made the application to be appointed administrator ad litem for the purpose of investigating the transfer of the proceeds of sale and, if appropriate, commencing an action as administrator to recover the funds. If that…

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 Kordos

Details

AGLC: Re Kordos [2024] VSCA 84
Case: [2024] VSCA 84
Decision Date: 2 May 2024

CaseChat Overview and Summary

The applicant, seeking a limited grant as an administrator ad litem, challenged the decision of a judge who declined to make such a grant. The decision was made in the context of the administration of an estate under the Administration and Probate Act 1958. The court was tasked with determining whether the judge had erred in various respects, including the sufficiency of reasons provided, the applicant’s independence, the applicant’s inability to provide a guarantee, and the perceived risk of maladministration. The applicant argued that the judge had failed to give adequate reasons for the refusal and had misconstrued the applicant’s independence and ability to provide a guarantee.

The legal issues before the court involved the interpretation of statutory provisions concerning the appointment of administrators ad litem and the factors a judge must consider when making such a decision. The court had to assess whether the judge had properly weighed the competing considerations, including the applicant’s independence and ability to provide a guarantee, and whether the judge had given sufficient weight to the factors that favoured the grant of a limited administration. Additionally, the court examined whether the judge had adequately considered the risk of maladministration and whether the decision to deny the grant was justified.

The court found no error in the judge's reasoning or in the weight given to the various factors. The decision highlighted that the judge had considered all relevant factors, including the applicant's independence and the inability to provide a guarantee, and had balanced these against the need to avoid the risk of maladministration. The court noted that the judge's reasons were sufficient and that the decision was within the statutory framework. Consequently, the applicant’s appeal was dismissed, and leave to appeal was refused.

The final orders of the court were to dismiss the appeal and to refuse leave to appeal to the higher court. The reasoning of the judge was upheld, and the factors considered were found to be appropriately balanced in the context of the statutory provisions and relevant case law.

Orders