Salkanovic v Polites (No 2) - [2025] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of FLORENCE GEMENIS POLITES
SALKANOVIC v POLITES (No 2)
[2025] SASC 101
Judgment of the Honourable Justice Stanley
18 June 2025
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
Florence Gemenis Polites (the deceased) died on 5 March 2024. The applicant, Markas Salkanovic, is the grandson of the deceased and a beneficiary of her estate. The respondent, the deceased’s son, is the named executor under the will.
On 13 December 2024 the respondent filed a notice of appeal against the orders made by the Court on 10 December 2024. Those orders appointed Sarah Hooper as administrator ad colligenda bona of the estate of the deceased and refused the respondent’s application for security for costs. On 16 December 2024 the respondent applied to the Court for a partial stay of the orders made by the Court on 10 December 2024 pending the determination of the appeal. On 20 December 2024 the Court made an interim order pending the hearing and determination of the executor’s stay application. The appeal is considered arguable for the purpose of the stay application.
In support of the stay application the executor made several submissions, one being that the sole “urgent” purpose in which a grant of letters of administration ad colligenda bona was sought by the applicant was to enable the bringing of a claim for further provision of the estate under the Inheritance (Family Provision) Act 1972 (SA) (IFP Act), prior to its repeal by the Succession Act 2023 (SA) on 1 January 2025. The executor raised concerns as to the anticipated expenditure of time and cost, and the risk to confidentiality in responding to a potential claim. The applicant opposed the executor’s submissions.
The Court has a discretionary power to order a stay of execution of a judgment pending the hearing and determination of an appeal both under its inherent jurisdiction and as expressly provided for under r 12.1(1)(o) and r 215.4(1) of the Uniform Civil Rules 2020 (SA) (UCR) and s 17 of the Enforcement of Judgments Act 1991 (SA). In considering such an application the Court is required to evaluate whether the balance of convenience favours the granting of the stay, including whether the refusal of the stay would result in a risk of significant prejudice to the applicant, which could not be remedied by a successful appeal.
Held, dismissing the respondent’s application for a partial stay and revoking the interim stay orders made on 20 December 2024, save and except order 3:
1.An order to stay a decision pending appeal is not appropriate in circumstances where an applicant for a stay fails…

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 Salkanovic v Polites (No 2)

Details

AGLC: Salkanovic v Polites (No 2) [2025] SASC 101
Case: [2025] SASC 101
Decision Date: 18 June 2025

CaseChat Overview and Summary

Salkanovic v Polites (No 2) concerns the dispute over the estate of a deceased person, with the respondent seeking a revocation of the interim orders made by the court. The matter was heard in the Supreme Court of South Australia. The respondent argued that the executor's appeal, listed for September, could potentially affect the outcome of the current proceedings, justifying a stay pending the appeal's determination.

The legal issues addressed in this case revolve around the jurisdiction and discretion of the court to grant or revoke stays in succession matters, particularly in the context of probate and letters of administration. The court had to determine whether the balance of convenience favoured staying the current proceedings pending the executor's appeal, which was scheduled for later in the year.

The court reasoned that despite the executor's arguable case on the merits of the appeal, the balance of convenience did not support the stay. The executor's appeal being scheduled for September increased the risk that the appeal would not be decided within the current year. Consequently, the court dismissed the respondent's application for a stay of its earlier decision, revoking the interim stay orders made on 20 December 2024, with the exception of order 3. The court indicated it would hear the parties on the issue of costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On this basis, even allowing that the executor has an arguable case on the merits of his appeal, the balance of convenience does not favour the stay sought by him pending the hearing and determination of the appeal. I am reinforced in this conclusion by the fact that the executor’s appeal is listed for hearing before the Court of Appeal in September. This renders it a real risk the appeal will not be decided this year. Conclusion For these reasons I dismiss the respondent’s application for a stay of my decision of 10 December 2024 pending appeal. Accordingly, I would revoke the interim stay orders made by me on 20 December 2024,[20] save and except order 3. [20] FDN 25. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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