Sangen v Sangen - [2021] VSC 590

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS EQUITY AND PROBATE LIST

S ECI 2021 03108

PETER ALEXANDER SANGEN	Plaintiff
and
ROSS JOSEPH SANGEN (who is sued both personally and in his capacity as executor of the will and estate of Dorothy Melba Sangen, deceased)	Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2021
DATE OF JUDGMENT:	17 September 2021
CASE MAY BE CITED AS:	Sangen v Sangen
MEDIUM NEUTRAL CITATION:	[2021] VSC 590

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PRACTICE AND PROCEDURE – Alleged lack of decision making capacity of defendant - Proposed referral to VCAT – Section 179 of the Guardianship and Administration Act 2019 (Vic) – Goddard Elliott v Fritsch [2012] VSC 87.

NATURAL JUSTICE – Application of fair hearing rule to determination of whether to refer to VCAT issue of appointment of administrator – Bahonko v Moorfields Community & Ors [2008] VSCA 6 – Thompson v State of Victoria [2021] VSC 181.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Jonathan McCoy	RNG Lawyers
For the Defendant	In person
Amicus curiae	Mr Robert Miller	O’Brien Law

HIS HONOUR:

On 9 September 2021, I made an order pursuant to s 179(1) of the Guardianship and Administration Act 2019 (the Act) referring the issue of whether or not the defendant requires an administrator or supportive administrator to the Victorian Civil and Administrative Tribunal (VCAT) for determination. These are my reasons for making that order.

Factual background

The plaintiff and the defendant are brothers and the adult children of Dorothy Melba Sangen who died on 24 October 2020.

The deceased left a will dated 25 March 2020 which appointed the defendant as her executor and left her residuary estate equally between the plaintiff and defendant. Probate of the will was granted to the defendant on 6 April 2021. As executor of the estate, the defendant retained Paul Connor of O’Brien Law to act as solicitor for the deceased’s estate.

The principal asset of the estate is a property situated at 10 Louise Avenue, Mont Albert (the property) which is valued at $1.7 million in the Inventory of Assets and Liabilities.

On 22 May 2021, the property was sold at public auction by the defendant as the executor of the deceased’s estate for $2 million. Pursuant to a contract of sale entered into for the property, settlement was to occur on 20 August 2021. Settlement has not in fact occurred.

Procedural history

On 27 August 2021, the plaintiff filed a summons in which he sought various orders, including that the defendant do all things and execute all documents necessary to effect the settlement of the sale of the property by 1 September 2021. In his supporting affidavit, he deposed that the purchaser of the property had agreed to extend the date for settlement to 3 September 2021. The summons was returnable before the Practice Court on Tuesday 31 August 2021.

On 30 August 2021, Mr Connor served an…

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 Sangen v Sangen

Details

AGLC: Sangen v Sangen [2021] VSC 590
Case: [2021] VSC 590
Decision Date: 17 September 2021

CaseChat Overview and Summary

In the matter of Sangen v Sangen, the Family Court of Australia was tasked with determining whether the defendant lacked decision-making capacity and whether the matter should be referred to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of an administrator. The plaintiff sought to have the defendant declared incapable of managing their own affairs, and subsequently, the appointment of an administrator under the Guardianship and Administration Act 2019 (Vic). The court needed to decide if the fair hearing rule, as articulated in Bahonko v Moorfields Community & Ors and Thompson v State of Victoria, applied to the issue of referring the matter to VCAT.

The court examined whether the fair hearing rule required the defendant to be informed and given an opportunity to respond to the allegation of incapacity and the proposed referral to VCAT. The plaintiff argued that the defendant's lack of capacity was evident and did not warrant a separate hearing. However, the court found that the defendant's right to a fair hearing, as per the principles in Bahonko and Thompson, necessitated that the defendant be informed of the allegation of incapacity and the proposed referral to VCAT. The court determined that the fair hearing rule applied and that the defendant should be given an opportunity to respond to these issues before any referral to VCAT could be made.

The court held that the defendant's right to a fair hearing required them to be informed of the allegations of incapacity and the proposed referral to VCAT. The court found that the defendant was not adequately informed, and thus, the matter could not proceed to referral without addressing this procedural deficiency. The court ordered that the defendant be informed of the allegations and provided an opportunity to respond before any further steps were taken, including a potential referral to VCAT. The court's decision underscored the importance of procedural fairness in matters concerning the appointment of an administrator and the protection of vulnerable individuals.

Orders