Re Wissa; Wissa v Wissa - [2021] VSC 565

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2020 02975

IN THE MATTER of the estate of the late IBRAHIM WISSA, deceased

- and –

IN THE MATTER of an application under r 54.02(2)(ii) of the Supreme Court (General Civil Procedure) Rules 2015

BETWEEN:

SHERIEN WISSA	Plaintiff
v
SHERIEF WISSA (in his capacity as executor of the will and estate of the late IBRAHIM WISSA, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	10 September 2021
CASE MAY BE CITED AS:	Re Wissa; Wissa v Wissa
MEDIUM NEUTRAL CITATION:	[2021] VSC 565

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COSTS — Where plaintiff and defendant are beneficiaries of estate — Where plaintiff sought information from executor regarding estate — Where executor declined to communicate with beneficiary — Plaintiff commenced proceeding against executor — Application resolved by production of information at first directions — Where executor sought to include other issues in proceeding —Defendant’s application refused — Parties unable to agree on costs — No point of principle — ASTA Developments (Aust) Pty Ltd v Amasya Enterprises Pty Ltd [2016] VSCA 186.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Pitt	Zervos Lawyers
For the Defendant	Ms E Konstantinou	Jones van Otterdyk Lawyers

HER HONOUR:

Introduction

Ibrahim Wissa died on 20 February 2018. The deceased was survived by his adult children, Sherien Wissa (‘the plaintiff’) and Sherief Wissa (‘the defendant’).

By his will dated 22 December 2017, the plaintiff and defendant were named as executors and are the beneficiaries of the estate in equal shares.

Since the death of the deceased and during 2019 the solicitors for the parties exchanged numerous letters concerning issues arising in the estate, including the assets and liabilities of the estate.

The deceased’s estate comprised a property at 9 St Shenouda Court, Hallam (‘the property’) which was subject to a mortgage with Australia and New Zealand Banking Group Limited (‘ANZ bank’) which secured a debt of the deceased’s company, Top Tours and Travel Pty Ltd (‘Top Tours’). Subsequently, the ANZ bank sold the property as mortgagee in possession and discharged the mortgage.

Background

On 13 November 2019 the defendant issued a proceeding seeking orders that the plaintiff be passed over as an executor on the basis of an asserted conflict of interest.[1] The parties reached agreement making it unnecessary for the asserted conflict of interest to be determined by the Court. On 14 February 2020, by consent, the plaintiff was passed over as executor of the will and leave was granted to the defendant to apply for a grant of probate as sole executor. The parties were unable to agree on the costs and orders were made for the filing of costs submissions.
[1]Proceeding S ECI 2019 05144.

On 17 March 2020, probate was granted to the defendant.

On 18 May 2020 orders were made in the passing over proceeding for the costs of and incidental…

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.

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Details

Case: [2021] VSC 565
Decision Date: 10 September 2021

CaseChat Overview and Summary

The case of Re Wissa; Wissa v Wissa involved the plaintiff, Wissa, and the defendant, Wissa, who were beneficiaries of an estate. The dispute centred around the plaintiff’s request for information from the executor regarding the estate. The executor had refused to communicate with the plaintiff, leading to the plaintiff initiating proceedings against the executor. The application was resolved by the production of information at the first directions hearing, but the executor attempted to include additional issues in the proceeding. The court refused the executor’s application and noted that the parties could not agree on costs. The court found there was no point of principle involved and referred to the case of ASTA Developments (Aust) Pty Ltd v Amasya Enterprises Pty Ltd.

The legal issues before the court were whether the executor could include other issues in the proceeding and whether there was a point of principle that warranted the court’s intervention in the costs dispute. The court examined the circumstances of the case and determined that the executor’s attempt to broaden the scope of the proceeding was not appropriate. The court also found that there was no point of principle that would justify the court's intervention in the costs dispute, as the matter did not involve significant legal or factual issues.

The court's reasoning was grounded in the principle that proceedings should be resolved efficiently and fairly. The court emphasised that the primary objective was to address the initial dispute regarding the provision of information from the executor to the beneficiary. By refusing the executor's application to include other issues and finding no point of principle in the costs dispute, the court ensured that the proceedings remained focused on the original matter. The court’s decision adhered to the principles of efficient case management and proportionality in legal proceedings.

The court ordered that the executor provide the requested information to the plaintiff and denied the executor's application to include additional issues in the proceeding. The court also ruled that there was no point of principle involved in the costs dispute, leaving the matter to be resolved between the parties. This decision underscored the importance of maintaining the focus of litigation on the core issues and avoiding unnecessary expansion of the scope of proceedings.

Orders