Re Safatli - [2025] VSC 280

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2024 06622

Sliman Safatli (as Administrator for the Estate of Ali Safatli, deceased, and by his litigation guardian Yousef Safatli (also known as Joe Safatli))

Plaintiff

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2025
DATE OF JUDGMENT:	21 May 2025
CASE MAY BE CITED AS:	Re Safatli
MEDIUM NEUTRAL CITATION:	[2025] VSC 280

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COSTS – Application for non-party costs order – Where r 63.23 of the Supreme Court (General Civil Procedure) Rules 2015 does not apply as non-party not a solicitor – Where non-party advised that a person can swear or affirm affidavit on behalf of another – Where non-party advised a grant of administration can be made to a person who lacks legal capacity – Where non-party’s erroneous advice necessitated proceedings – Court’s discretion to make a non-party costs order not enlivened – Supreme Court Act 1986, s 24(1) - Knight v FP Special Assets Ltd (1992) 174 CLR 178 – Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 396 - Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd [2015] VSC 644 - Gdanski v Palms Court Management Pty Ltd [2017] VSCA 348 - Kyne v Gerard Brandrick & Associates Pty Ltd [2025] VSCA 17.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Staindl	McNab McNab & Starke

HIS HONOUR:

Ali Safatli died intestate on 3 June 2020 at 30 years of age. Letters of administration on intestacy were granted to the deceased’s father, the plaintiff in this proceeding, on 27 March 2023. Two years later on 17 March 2025, the Court ordered that the plaintiff be discharged as administrator of the deceased’s estate and that the deceased’s brother, Yousef Safatli,[1] be appointed in his place. It had become necessary for the plaintiff to be discharged as administrator because he is a person under a disability who is incapable of managing his financial affairs and acting as administrator of the deceased’s estate. The plaintiff’s application seeking his own removal as administrator was brought by Yousef in his capacity as the plaintiff’s litigation guardian.
[1]To avoid confusion and without intending any disrespect, in these reasons I refer to Yousef Safatli by his first name.

In addition to providing for the discharge of the plaintiff as administrator of the deceased’s estate and the appointment of Yousef in his stead, the orders of 17 March 2025 listed the proceeding for hearing on 1 May 2025 in relation to costs. This was for the purpose of affording Mr Paul Shaba an opportunity to be heard in relation to whether the Court should make an order requiring him to pay the costs of the proceeding pursuant to r 63.23 of the Supreme Court (General Civil Procedure) Rules 2015. Mr Shaba was also ordered to appear at the hearing on 1 May 2025.

Facts

The…

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 Safatli

Details

AGLC: Re Safatli [2025] VSC 280
Case: [2025] VSC 280
Decision Date: 21 May 2025

CaseChat Overview and Summary

In the Supreme Court of Victoria, Sliman Safatli, as Administrator for the Estate of Ali Safatli and by his litigation guardian Yousef Safatli, sought an order that Mr Paul Shaba, a conveyancer, pay the costs of the proceeding. The case arose from the erroneous legal advice Mr Shaba provided to Yousef regarding the administration of Ali Safatli's estate. Mr Shaba's advice led to the plaintiff being appointed as administrator despite his incapacity to manage the estate, necessitating subsequent proceedings to discharge him and appoint Yousef in his place.

The primary legal issue before the court was whether Mr Shaba should be required to pay the costs of the proceeding under s 24(1) of the Supreme Court Act 1986 or r 63.23 of the Supreme Court (General Civil Procedure) Rules 2015. The plaintiff argued that Mr Shaba's erroneous advice was the sole cause of the proceeding and that it was just and equitable for him to bear the costs. The court examined whether the discretion to make a non-party costs order was enlivened, considering the principles established in Knight v FP Special Assets Ltd and subsequent cases. The court found that Mr Shaba was not a 'real party' to the litigation and had no active role in the proceeding. Therefore, the discretion to make a non-party costs order against Mr Shaba was not enlivened.

Moore J concluded that while Mr Shaba's advice was incorrect and had significant consequences, the discretion to make a non-party costs order was not engaged. The court's reasons for judgment were forwarded to the Victorian Legal Services Commissioner to consider any contravention of professional standards by Mr Shaba.

Orders