Salmi v Sinivuori

[2008] QSC 321

SUPREME COURT OF QUEENSLAND

CITATION:

Salmi & Anor v Sinivuori & Anor [2008] QSC 321

PARTIES:

JACK RAFAEL SALMI and MAIJA MIRIAM MOORE (as personal representatives of the estate of JOHN ERIC SALMI also known as JUHANI ERICK RAFAEL SALMI (deceased) pursuant to grant of Letters of Administration with the Will dated 18 February 2008)
(Applicants)

v

PENTTI UNTO SINIVUORI and SARI SUSANNA SINIVUORI
(Respondents)

FILE NO:

No 11336 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2008

JUDGE:

Lyons J

ORDER:

1.   The administrators are authorised to defend the claim on the estate’s behalf.

2.   The administrators are not to be indemnified out of the estate in relation to costs in defending the claim.

3.   The applicants are to pay the respondent’s costs of and incidental to this application on the standard basis.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO THE COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – application to obtain directions from the Court as to whether the trustee should litigate on behalf of the trust – whether the applicants, as administrators, can defend the claim by the respondents

SUCCESSION – EXECUTORS AND ADMINISTRATORS – whether the applicants are to be indemnified out of the estate as against the costs of resisting the plaintiff’s claim

Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247, cited
Evans v Evans [1985] 3 All ER 289, applied
Gray v Guardian Trust Australia Ltd [2003] NSWSC 704, cited
In reEaton, Deceased [1964] 1 WLR 1269, cited
Re Beddoe; Downes v Cottam [1893] 1 Ch 547, applied
ReDallaway [1982] 1 WLR 756, cited

COUNSEL:

RD Peterson for the applicant
PA Looney for the respondent

SOLICITORS:

Cronin Litigation Lawyers for the applicant
McCarthy Durie Ryan Neil for the respondent

The background

1. Ben Sinivuori was 23 years old when his mother Astrid, married the deceased in 1983.  The deceased had five children from a prior marriage at the time.  In 1992 Mr Sinivuori and his wife Sari (“the respondents”) purchased a farm at Thornlands (“the property”) with Astrid and the deceased.  From the time the property was acquired a poultry farm has operated on the property by virtue of a family trust of which the respondents, the deceased, and Astrid were all beneficiaries.

1. The respondents assert in substance that there was an agreement reached between them at the time the property was purchased that Astrid and the deceased’s interest in the property would pass to the respondents on their death.

1. Within three months after the property was acquired, the deceased and Astrid each made Wills in which they left the whole of their estate to each other and then to Ben Sinivuori, their stepson and son respectively.  Astrid died in 1995 and her interest in the property passed to the deceased.

1. It appears that in January 2006, the deceased (then…