Sofianidis v Hill

[2025] NSWSC 37

Supreme Court

New South Wales

Medium Neutral Citation:

Sofianidis v Hill [2025] NSWSC 37

Hearing dates:

7 February 2025

Date of orders:

7 February 2025

Decision date:

07 February 2025

Jurisdiction:

Equity - Probate List

Before:

Slattery J

Decision:

Orders made for the defendant to attend court in person or by her legal representative on 21 February 2025; and for service of this judgment and orders upon the defendant, together with a warning if she does not attend Court as ordered that an arrest warrant will be issued to bring her to Court on 28 February 2025.

Catchwords:

SUCCESSION — Administration of estates – the deceased’s will leaves the whole of her estate to her two daughters, the plaintiff and the defendant and appoints them as her joint executors – plaintiff and the defendant cannot cooperate in the administration of the estate – the substantial asset in the estate is a residential property occupied by the defendant since the death of the deceased – the defendant refuses to engage with the plaintiff on matters of estate administration – an independent administrator of the estate cum testament annexo is appointed in 2023 upon the plaintiff’s application – the defendant refuses to communicate with the independent administrator and continues to occupy the residential property of the estate – the independent administrator is given judicial advice authorising her to bring proceedings for judgment for possession of the estate’s residential property – proceedings for possession commenced by the cross claimant and served upon the defendant – the defendant does not appear in response to the Summons and does not appear when ordered to do so – whether the Court should proceed to authorise judgment for possession and the issue of a writ for possession or whether the Court should issue a warrant for the arrest of the plaintiff to require her deal early with the relief sought in the proceedings.

Legislation Cited:

Civil Procedure Act 2005 Part 6 and s 97

Trustee Act 1925 s 63

Category:

Procedural rulings

Parties:

Plaintiff: Robyn Mary Sofianidis

Defendant: Lisa Araluen Hill

Cross-Claimant: Tamara Jayne Goodwin as independent administrator for the Estate of the Late Helen Brien Clare Hill

Representation:

Counsel:
Plaintiff: M M Pringle

Solicitors:
Plaintiff: Drayton Sher Lawyers
Cross-Claimant: Glass Goodwin

File Number(s):

2023/00093312

Publication restriction:

Nil

JUDGMENT

1. The defendant, Lisa Araluen Hill refuses to respond to all the legal process served upon her in this matter. Justice cannot be done according to law between these parties if the defendant continues, as she has done so far, to isolate herself from this litigation and this Court.

2. This judgment is the final warning that the Court will give the defendant before taking more drastic action to force her to engage with the Court. This judgment is given orally and will be reduced to writing so that it can be served upon the defendant and made available to people who know the defendant. This is being done in the expectation that some good-hearted friend of the defendant will be able to discuss its contents with her. This should allow her to take stock of her situation before the Court authorises the taking of more coercive action against her.

3. The plaintiff and the defendant are sisters. They are the daughters and the only children of the late Helen Brien Clare Hill (the deceased), who died on 8 July 2021. The deceased left a will of 9 March 2006 appointing the defendants as joint executors. The deceased’s appointment of her two children as executors reflected the not uncommon assumption that they would cooperate in the administration of her estate for their mutual benefit.

4. After giving a small legacy to charity, the deceased left her substantial estate of $4.165 million to the plaintiff and the defendant equally. The estate is comprised principally of a house at Cremorne with a sworn value for probate purposes of $3.9 million. The balance of the estate consists of furniture, the household effects of the deceased, the contents of various bank accounts, and other shares and securities. Probate was granted to the plaintiff and the defendant on 26 April 2022.

5. From that time on, for reasons which remain obscure, the defendant has not cooperated with the plaintiff in progressing the administration of the estate. The affidavit evidence in the proceedings contains a sorry history of courteous and reasonable attempts by Ms Sofianidis, the plaintiff, to contact, engage with, and persuade her sister into cooperating in the estate’s administration. These attempts were to no avail. The defendant’s response appears to have been simply delay, obfuscation, diversion, and ultimately no communication at all.

6. The defendant has occupied the Cremorne property since the deceased's death three and a half years ago. Such delay in the administration of this estate is unacceptable and entirely contrary to the Court’s statutory objectives under Civil Procedure Act 2005 Part 6 of ensuring the just, quick and cheap disposition of proceedings. The defendant’s continued obstructive occupation of the Cremorne property to the exclusion of the plaintiff has not only paralysed the administration of the estate but has the effect of unfairly denying to the plaintiff enjoyment of half of the capital of the estate to which she is entitled.

7. In its probate jurisdiction the Court supervises the administration of estates to overcome delay, resolve conflict, to ensure that beneficiaries can without unnecessary expense enjoy the benefits that testators have conferred upon them. Efficient estate administration allows beneficiaries to deploy the capital to which they are entitled to their own advantage by their own free choice, rather than having it tied up and controlled by the actions of others.

8. The defendant’s lack of engagement led the plaintiff to commence these proceedings on 22 March 2023. By her Statement of Claim, the plaintiff sought relief that the defendant be removed as co-executor and that the estate be solely administered by the plaintiff.

9. Lindsay J took the preliminary step of revoking the existing non-functioning probate on 22 July 2023 because of the paralysis in estate administration. On 6 October 2023, the plaintiff filed a Summons for administration with the will annexed, seeking appointment of an independent administrator. The original Statement of Claim had sought that the plaintiff herself be appointed administrator.

10. The independent administrator, an experienced and senior probate practitioner, Ms Tamara Jane Goodwin, was appointed on 29 December 2023. As independent administrator, Ms Goodwin herself tried to do what the plaintiff had previously attempted: to engage with the defendant and to persuade her to vacate the property so that it could be sold. But Ms Goodwin faced the same lack of responsiveness from the defendant that the plaintiff had encountered.

11. Ms Goodwin reached the view that she had little alternative but to commence proceedings for possession of the Cremorne property. The independent administrator applied for judicial advice in October 2024 (proceedings 2024/292686). On 31 October 2024 the Court ordered that its opinion, advice and direction pursuant to s 63 of the Trustee Act 1925, was that the administrator of the estate of the deceased would be justified in commencing proceedings against the defendant to obtain exclusive possession of the Cremorne property.

12. Together with the judicial advice, the Court gave leave to Ms Goodwin to commence proceedings for possession of the Cremorne property by way of a Cross-Claim in the same proceedings. The Cross-Claim was filed on 12 December 2024. The Court granted leave for it to be returnable on Friday, 20 December 2024. The Court is satisfied that the Cross-Claim was served on the defendant at the Cremorne property, clearly indicating it was returnable before the Court on 20 December 2024.

13. The defendant did not appear on 20 December 2024. Due to her non-appearance, the Court made the following orders and directions for the re-service of the process at the Cremorne property and to bring the adjourned time and date of 2.00pm on 7 February 2025 to the attention of the defendant.

14. The full orders of 20 December 2024 were as follows:

1. NOTES that the defendant, Lisa Araluen Hill was, called outside Court at 10:10am and that she did not appear in person and there was no appearance on her behalf.

2. DIRECTS the cross-claimant to re-serve the defendant with, the First Cross-Claim dated 12 December 2024 and the affidavit of Tamara Jayne Goodwin affirmed on 12 December 2024 together with a copy of these orders (together the “service documents”) in the following modes and at the following times:

a. by email at [redacted] by 4pm on 20 December 2024; and

b. by leaving a copy of the service documents at the front door of [redacted] Cremorne by 5pm on 24 December 2024; and

c. personally by 5pm on 12 January 2025.

3. ADJOURNS the First Cross-Claim for hearing to 2pm on 7 February 2025 before Slattery J.

4. ORDERS the defendant, Lisa Araluen Hill, to attend Court 8D in the Queens Square Law Courts Building on 184 Phillip St, Sydney NSW 2000 at 2pm on 7 February 2025 for the hearing of the Cross-Claim.

PENAL NOTICE

TO: LISA ARALUEN HILL
IF YOU:

REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

15. The Court has received the affidavit of service of those orders sworn by Justin Richards dated 15 January 2025. It establishes that on 24 December 2024, he complied with the orders for service of the documents upon the defendant ordered on 20 December 2024.

16. The Court is satisfied that the defendant has had sufficient notice of today's hearing, and that she was ordered to appear.

17. The Court now emphasises two things:

1. That Ms Hill was ordered by order 4 to attend today. By her non-appearance, either by counsel or by herself today, she is in breach of order 4.

2. By way of penal notice, the defendant was warned that if she refused or neglected to do anything as she was ordered to do on 20 December 2024, that she may be liable to penalties.

18. The defendant is now in breach of that order. She has persistently ignored the legal process in these proceedings. What is to be done?

19. The Court is satisfied upon the evidence that defendant occupies the Cremorne property and that notice of these proceedings has been served upon her in accordance with the Court’s orders. The reasonable inference from these circumstances is that the defendant has formed the view that it is to her advantage to continue to ignore the Court so that she can occupy the Cremorne property.

20. The Court’s authority cannot be ignored any longer. To decide otherwise would allow the defendant and not the Court to decide the outcome of this estate administration. And it would mean in the short term that the defendant would continue to unfairly enjoy the property of the estate to the cost of the plaintiff. That is repugnant to the proper administration of justice and is therefore unacceptable.

21. The Court has decided that it will give the defendant one last brief opportunity to rectify her past and continuing failures to appear and to comply with the Court's orders. After that the Court will take forceful and direct action to ensure that the defendant complies with its orders. The Court will pause briefly before taking these next steps, especially as the defendant’s failure to respond so far is difficult to comprehend. But the defendant should not misunderstand the Court’s determination to ensure that she will not be permitted to ignore the Court’s authority any longer.

22. As doing nothing is not acceptable, the Court is presented with two main future options:

1. enter judgment for possession and issue a writ for possession as the independent administrator requests in the Cross-Claim; or

2. issue a warrant for the arrest of the defendant under Civil Procedure Act 2005 s 97 to bring her to Court to require her to answer the Court’s process in person and engage with the looming future issue that she may be removed from the Cremorne property.

23. The Court has decided to pursue the second of these options. Given the unusual conduct of this defendant, the Court is concerned, from its own experience of such cases, that making an order for possession, which will be executed by a writ, may operate unnecessarily to the defendant’s disadvantage, compared with the course of issuing a warrant for her arrest. It can be inferred that the defendant will continue to ignore orders of the Court until a writ for possession is being executed and she is suddenly forced out of the Cremorne property by the Sheriff. Being suddenly locked out of her house, having to find fresh accommodation, and obtaining legal advice to engage with the proceedings will all involve delay, discomfort, and dislocation for her. She may seek a stay at the point the Sheriff is executing the writ. The situation then is likely to be chaotic. The delay in execution of a writ for possession can be six to eight weeks. Should she obtain a stay there will be a further period of delay in re-executing the writ.

24. The defendant is plainly attached to the Cremorne property. It is desirable that she either vacates it or deals with it according to a timetable with which she is familiar.

25. The option of issuing a warrant for her arrest, has the advantage that it will require her to come to Court and engage, but she will be able to go back to the Cremorne property the day she comes to Court. It will give the Court an opportunity to attempt to reason with her directly. If she still refuses to engage, she faces the immediate prospect of the Court entering judgment for possession and issuing a writ for possession, to minimise further delay. The period for the execution of any writ will be explained to her directly by the Court after the Court has the benefit of her submissions.

26. The Court will request the Registrar to invite pro bono legal assistance to be available at Court when the defendant attends, if she is arrested. Although it is hoped that the solicitor who has acted for the estate in the past, Mr Peter Ellis, may be able to attend to assist her on that day. His intervention may persuade the defendant to submit to the Court's processes, even at this late stage, after she gains some insight that co-operation will be smoother for her in the medium term.

27. Being brought to Court forcibly, confronting though it may be, will give her a chance to organise herself and will reduce the even more traumatic effect if she is later suddenly removed from the Cremorne property. Hopefully, it will also allow for either her co‑operative departure from the house or some transaction to acquire it at market value. Ultimately, the course which the Court is taking will give the defendant more resources and more time to make the best choice for her future at the Cremorne property or elsewhere.

28. The Court makes the following orders:

1. ADJOURNS these proceedings for hearing into the probate motions list on Friday, 21 February 2025 at 2.00pm.

2. ORDERS that the cross-claimant serve the defendant with a copy of Court’s judgment delivered on 7 February 2025 in Sofianidis v Hill [2025] 37 (“Judgment”) together with a copy of these orders in the following modes and at the following times:

1. by email at [redacted] by 4.00pm on Tuesday, 11 February 2025; and

2. by leaving a copy of the service documents at the front door of [redacted] Cremorne by 5.00pm on Tuesday, 11 February 2025.

3. DIRECTS that a copy of these orders be provided by Ms Goodwin and the plaintiff to Mr Ellis, the solicitor who previously acted for the estate by 4.00pm on 11 February 2025.

4. NOTES that the Court has requested Mr Ellis to attempt to contact the defendant to bring this judgment to her attention.

5. ORDERS the defendant to attend courtroom 8D in the Queens Square Law Courts at 184 Phillip Street, Sydney at 2.00pm on 21 February 2025 for the adjourned hearing of the Cross-Claim.

6. NOTES that if the defendant fails to attend court on 21 February 2024 either in person or by a legal representative that it is the Court's present intention to issue a warrant for her arrest under s 97 of the Civil Procedure Act and that that warrant will require her to attend the Supreme Court at Queens Square at 2.00pm on 28 February 2025.

7. NOTES that the Court has also request the plaintiff and Mr Ellis that if they are aware of any other person who knows the defendant, who could bring this judgment to her attention and discuss it with her that they should do so as soon as practicable.

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Decision last updated: 21 February 2025