Skaftouros and Ors v Dimos - [2001] VSC 445

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5667 of 2001

IN THE MATTER of the Will of Dimitrios Skaftouros deceased

LEE ANTHONY SKAFTOUROS AND OTHERS	Plaintiffs
v.
LEO DIMOS	Defendant

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 NOVEMBER 2001
DATE OF JUDGMENT:	15 NOVEMBER 2001
CASE MAY BE CITED AS:	SKAFTOUROS & ORS. v. DIMOS
MEDIUM NEUTRAL CITATION:	[2001] VSC 445

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CATCHWORDS: Proceeding to remove defendant as executor of estate – Application for injunction to restrain defendant selling portion of assets of estate pending trial of proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. M. Simon	Woodhams O'Keeffe & Co.
For the Defendant	Mr. A. Southall Q.C. and Mr. E. Rallis	Leo Dimos

HIS HONOUR:

The defendant, Leo Dimos, is the executor of the will and estate of Demitrios Skaftouros. He was so appointed by the will of the deceased dated 7 April 1994. The deceased died on 24 October 1998. Probate of his will and estate was granted to the defendant on 22 June 1999.

On 7 May 2001 the three children of the deceased, Paul Dimitrios Skaftouros, Lee Anthony Skaftouros and Catherine Pearce, who are beneficiaries of the estate of the deceased, and the deceased's brother Peter Skaftouros filed a proceeding in the court whereby they seek to have the defendant removed as executor of the will and estate of the deceased.

On 8 November last those plaintiffs filed a summons in the court whereby they seek to have the defendant dealt with for contempt of court for his alleged failure to comply with an order made by Balmford, J. on 24 September 2001 and whereby they seek to restrain the defendant from selling or dealing with a block of flats at 21 Mena Avenue, Cheltenham. Although the summons does not say so, it is clear that they seek the latter order pending the hearing and determination of the proceeding.

When the matter first came before me I indicated to the parties that it was quite inappropriate to deal with the committal aspect of the summons in the Practice Court and that I intended to refer that matter to the trial judge of the proceeding as such, the proceeding having been fixed for hearing on 5 February 2002.

I have, however, heard the application for the injunction to restrain the defendant selling the block of flats in question. It is important that, in stating to the parties what I propose to do so far as the application is concerned and my reasons for doing so, I do not say anything which may in any way inhibit the trial judge. Having said that, I do observe, however, that it seems somewhat unusual, when one has regard to the nature of the estate of the deceased, that more than three years has now elapsed since the death of the deceased and as yet his estate has not been fully administered.

As I expressed during the course of…

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: [2001] VSC 445
Decision Date: 15 November 2001

CaseChat Overview and Summary

The applicants, Skaftouros and others, sought to remove the defendant, Dimos, as executor of an estate. They applied for an injunction to prevent the defendant from selling a portion of the estate's assets until the trial of the proceeding. The case was heard by the court, which had to determine whether the injunction should be granted. The legal issues revolved around the discretion of the court in granting an injunction to restrain the defendant from disposing of estate assets and the criteria that should be applied in making such a decision.

The court considered the balance of convenience and whether the applicants had a serious question to be tried. It examined the potential harm that could be caused to the estate if the injunction was not granted, and whether this harm outweighed any potential harm that might be caused to the defendant if the injunction was granted. The court also considered the merits of the case and whether the applicants had a reasonable prospect of success at the trial. The court found that the applicants had demonstrated a serious question to be tried and that the balance of convenience favoured granting the injunction. The court also found that the applicants had a reasonable prospect of success at the trial.

Based on these findings, the court granted the injunction, restraining the defendant from selling the portion of the estate's assets. The court determined that the potential harm to the estate if the injunction was not granted outweighed any potential harm to the defendant. The court also found that the applicants had demonstrated a reasonable prospect of success at the trial, which supported the grant of the injunction. The final orders of the court included the injunction restraining the defendant from selling the specified assets of the estate and directions for the parties to proceed with the trial of the proceeding.

Orders