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

---

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

---

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.

---

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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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. 

1. As I expressed during the course of the hearing, it also seemed unusual to me that it would be necessary for an executor in the place of the defendant to obtain an independent report from a firm of accountants concerning what in effect is his administration of the estate, a report which he estimates will cost the estate some $10,000.  There may be a perfectly valid explanation for that which is not apparent to me but which may well become apparent to the trial judge.  I make no further comment concerning it.

1. Having regard to the nature of the dispute between the parties, with the trial of the proceeding imminent, I think it would be inappropriate to sell the block of flats in question prior to the hearing and determination of the matter.  As I have already observed, more than three years has now elapsed since the death of the deceased.  I can see no degree of urgency about a sale of the flats.  It is the wish of the three residual beneficiaries that they not be sold but that they be handed over to them to enable them to strata title the flats in the hope of achieving a more profitable outcome of any sale of them than if they are sold not strata titled.  As I said, I can see no real urgency about the matter, and in the circumstances I think it is more appropriate to preserve the status quo as it is at the present time and allow this whole matter to be determined by the trial judge in early February at a full hearing of the proceedings.

1. Accordingly, I order that until the hearing and determination of this proceeding or further order the defendant, whether by himself, his servants or agents or howsoever otherwise, be restrained from selling or dealing with the flats at 21 Mena Avenue, Cheltenham in the State of Victoria.

1. In so far as the costs of the present application  are concerned, in my opinion the appropriate course to follow is to simply reserve those costs to await the outcome of the trial of the proceeding. 

1. Accordingly I order that the costs of the present application for injunctive relief, including the costs of the appearance by the parties on 12 November, be reserved.

1. I also direct that the order be prepared by the solicitors for the plaintiffs and within 48 hours be brought to me for authentication.

---