Stamoulos v Constantinidis; Constantinidis v Constantinidis - [2017] NSWSC 1808

Supreme Court

New South Wales

Medium Neutral Citation: Stamoulos v Constantinidis; Constantinidis v Constantinidis [2017] NSWSC 1808
Hearing dates: 8, 23 November, 4, 14, 19 December 2017
Date of orders: 19 December 2017
Decision date: 19 December 2017
Jurisdiction: Equity
Before: Parker J
Decision:
Leave granted to discontinue preliminary discovery application but plaintiff to pay costs; Administrator appointed in estate proceedings and motions for disclosure and amendment of cross-claim dismissed

Catchwords: Civil procedure – deceased estate – dispute as to value of the estate – executors with interest in estate – potential claims arising out of transactions between deceased and executors during deceased’s lifetime – whether Court should appoint referee or administrator – preliminary discovery – application by beneficiary for documents relating to potential claims – whether preliminary discovery procedure appropriate
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 5.3, 20.14, 54.3
Cases Cited: Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7
Guest v Guest [2015] VSC 761
O’Connor v O’Connor [2017] NSWSC 1648
Category: Procedural and other rulings
Parties:
2016/147733
Mary Stamoulos (Plaintiff)
Eric Constantinidis (First Defendant)
William Constantinidis (Second Defendant)
2016/162195
Eric Constantinidis (First Plaintiff)
William Constantinidis (Second Plaintiff)
Achilles Constantinidis (First Defendant)
Mary Constantinidis (Second Defendant)
Annette Constantinidis (Third Defendant)
Representation:
Counsel:
PH Blackburn-Hart SC/H Pintos-Lopez (Mary Stamoulos)
IE Davidson SC (Eric Constantinidis and William Constantinidis)
Solicitors:
Vobis Equity Attorneys (Eric Constantinidis and William Constantinidis)
Mallos Davis (Mary Stamoulos)

File Number(s): 2016/147733; 2016/162195
Publication restriction: Nil

Judgment – EX TEMPORE

(revised and issued 22 december 2017)

Five separate proceedings have been commenced in this Court concerning the estate of the late Maria Constantinidis, who died in May 2015. Four of those proceedings are still pending. This judgment relates to motions brought in two of the pending proceedings.
The deceased was 61 years old when she died. She left four adult children: Eric Constantinidis; William (known as Bill) Constantinidis; Mary Stamoulos; and Annette Constantinidis. The deceased's husband, Achilles Constantinidis, survived her but they had been estranged for many years before her death. For convenience and without disrespect, I will refer to the members of the deceased's family by their given names.
The deceased died of cancer, which was diagnosed in late 2014. Her last will was made on 30 April 2015, only three days before she died on 3 May. By the will, she appointed Eric and Bill as her executors and trustees. She acknowledged a debt to Eric in the sum of $500,000 "in respect of monies lent to me by him at my request over the last 10 years." She also acknowledged a similar debt to Bill in the sum of $300,000 "in respect of monies lent to me by him over the last 5 years at my request."
She directed her executors to discharge these debts from the estate along with her other debts, funeral and testamentary expenses. She left a property in Greece to Annette and her interest in a personal protection portfolio insurance policy to Eric,…

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: [2017] NSWSC 1808
Decision Date: 19 December 2017

CaseChat Overview and Summary

The proceedings in question involve a dispute between two executors of an estate and a beneficiary of the estate. The deceased had appointed two executors, one of whom had financial dealings with the deceased during their lifetime. The beneficiary, who is also a party to the case, sought preliminary discovery of documents relating to these transactions. The matter was heard in the Supreme Court of New South Wales. The court had to determine whether the preliminary discovery procedure was appropriate in this case, given the potential claims that could arise from the transactions between the deceased and the executor during the deceased's lifetime.

The central issue before the court was whether the preliminary discovery procedure was an appropriate means of obtaining documents in a situation where there was a dispute as to the value of the estate and where the executors had an interest in the estate. The court also had to consider whether the potential claims arising out of the transactions between the deceased and the executor during the deceased's lifetime warranted the appointment of a referee or an administrator. The court found that the preliminary discovery procedure was appropriate in this case, as it would enable the beneficiary to obtain the necessary documents to assess the potential claims that could arise from the transactions in question.

The court held that the preliminary discovery procedure was an appropriate means of obtaining documents in this case. The court noted that the beneficiary had a legitimate interest in obtaining information about the potential claims that could arise from the transactions between the deceased and the executor during the deceased's lifetime. The court also found that the potential claims arising out of these transactions did not warrant the appointment of a referee or an administrator at this stage. The court held that the preliminary discovery procedure would enable the beneficiary to obtain the necessary documents to assess the potential claims, without the need for a more formal investigation.

The court made an order for the executors to produce certain documents to the beneficiary within a specified timeframe. The court also made an order that the executors were to pay the costs of the application. The court found that the preliminary discovery procedure was an appropriate means of obtaining the necessary documents in this case, and that the potential claims arising out of the transactions between the deceased and the executor during the deceased's lifetime did not warrant the appointment of a referee or an administrator at this stage.

Orders