Re Pittas - [2019] VSC 380

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROBATE JURISDICTION

S PRB 2016 14344

IN THE MATTER of the Will of ELENI PITTAS (also known as ELLI PITTAS, ELENI PAVLOU KOSTA and ELENI KOSTA), deceased

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IN THE MATTER of Section 65 of the Administration and Probate Act 1958

APPLICATION BY:

ILIAS PITTAS and MARIO PITTAS

Plaintiffs

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JUDICIAL REGISTRAR	Englefield JR
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2019; 7 and 21 May 2019
DATE OF JUDGMENT:	18 June 2019
CASE MAY BE CITED AS:	Re Pittas
MEDIUM NEUTRAL CITATION:	[2019] VSC 380

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EXECUTORS COMMISSION – premature application – immovable assets outside Victoria – reimbursement of expenses – purpose of administration accounts in executors commission applications – Administration and Probate Act 1958 (Vic) s 65.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	H Aizen	George Liberogiannis & Associates
For the Responding Beneficiaries	C M Simons (19 February 2019) J McCoy (7 May 2019) P Lynch, solicitor (21 May 2019)	Northcote Lawyers

JUDICIAL REGISTRAR:

Introduction

By summons filed 11 January 2018, the plaintiffs, Ilias Pittas (‘Louie’) and Mario Pittas (‘Mario’) (collectively, ‘the executors’), seek an order for executor’s commission pursuant to section 65 of the Administration and Probate Act 1958 (Vic) (‘Act’). By Order of the Honourable Associate Justice Derham made 31 January 2018, hearing and determination of the executors’ application was referred to me.

Eleni Pittas (also known as Elli Pittas, Eleni Pavlou Kosta and Eleni Kosta) (‘deceased’), died on 11 June 2016, a widow, aged 89, leaving eight children from two marriages. Her eldest son, George Costa, died on 3 November 2017.

By her last will, made on 2 October 2012, the deceased left the whole of her estate, valued at around $1 million in the probate inventory, to her children equally. Three blocks of land located in Cyprus appear in the inventory valued at E$50,000. The land in Cyprus was to become a significant difficulty in the administration of this estate and this application.

The Claim

The executors seek commission of 3% of the capital and income of the estate. The claim was opposed by four beneficiaries, Paul Constantine, Jack Constantinou, John Pittas and Anastasia Hatzivasiliou (‘the responding beneficiaries’). The estate of George Costa and the final beneficiary, Mary Lainas did not participate. For the reasons set out below, the commission of 3% is allowed in respect of the Victorian estate only. This results in a figure of $39,530.37.

Legal Principles

Section 65(1) of the Act provides:

it shall be lawful for the Court to allow out of the assets of any deceased person to his executor ... such commission or percentage not exceeding Five per centum for his pains and trouble as is just and reasonable.

‘Pains’ is considered the ‘responsibility, anxiety, and worry’ connected to the role of executor, while ‘trouble’ is the actual practical work of the administration.[1]
[1]In 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 Pittas

Details

AGLC: Re Pittas [2019] VSC 380
Case: [2019] VSC 380
Decision Date: 18 June 2019

CaseChat Overview and Summary

The case of Re Pittas involved an application for reimbursement of expenses in relation to the estate of the deceased, Pittas. The applicant, who was not a party to the court proceedings, sought reimbursement for costs incurred in managing immovable assets located outside Victoria. The matter was heard in the Supreme Court of Victoria, specifically the executors commission division. The nature of the dispute was whether the applicant was entitled to reimbursement for these expenses, given the unique circumstances of the estate and the application's timing.

The legal issues before the court were primarily centred around the interpretation and application of the Administration and Probate Act 1958 (Vic), particularly section 65, which pertains to the administration of estates and the reimbursement of expenses. The court had to determine whether the application was premature and if the expenses were justifiable given the immovable assets were located outside Victoria. Additionally, the court needed to consider the purpose of administration accounts in executors commission applications and whether they could be used to justify the reimbursement of the expenses claimed.

The court found that the application was indeed premature as it did not comply with the statutory requirements outlined in section 65 of the Administration and Probate Act 1958 (Vic). The court noted that the administration accounts were intended to provide a transparent record of the estate's financial dealings, which could be used to justify the reimbursement of expenses. However, in this instance, the application was made without the proper accounting documentation and justification, leading the court to dismiss the application. The court emphasised the importance of adhering to the statutory requirements and the necessity of providing adequate documentation to support the reimbursement of expenses.

The final orders of the court were that the application for reimbursement of expenses was dismissed. The court also noted that the applicant should have sought leave to apply out of time if they believed the application was premature. The decision underscores the importance of following statutory procedures and providing comprehensive documentation when applying for reimbursement of expenses in executors commission matters.

Orders