Szabo v Balogh - [2007] VSC 232

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6321 of 2007

STEPHEN SZABO	Plaintiff
v
VICTORIA BALOGH	Defendant

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 MAY 2007
DATE OF JUDGMENT:	23 MAY 2007
CASE MAY BE CITED AS:	SZABO v BALOGH
MEDIUM NEUTRAL CITATION:	[2007] VSC 232

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PROBATE – conflict between co-executors, plaintiff and defendant – defendant resident in property forming substantial part of estate – judgment for possession of that property previously obtained by plaintiff when he was sole executor – property sold at auction by plaintiff despite objections by defendant who was, by then, a co-executor – defendant refusing to sign transfer of land - declaration that defendant refused order to sign transfer of land –transfer of land be executed by the Prothonotary in the event

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr SGR Wilmoth	Theo Fleming & Associates
For the Defendant	In person, accompanied by Mr McClure with leave

HIS HONOUR:

By an originating motion filed on 11 May 2007, the plaintiff sought a declaration that execution by him as co-executor with the defendant of the estate of Maria Balogh, deceased, and as transferor of a transfer of land of the estate's property situated at 16 Joffre Street, Croydon, Victoria, being the whole of the land more particularly described in Certificate of Title Volume 07690 Folio 162, be valid and sufficient execution of the transfer of the property by the estate to a purchaser of the property. The notice of motion sought, in paragraph 2, that the defendant be and is hereby directed to execute the transfer of land of the property; and, in paragraph 3, alternatively, if the defendant failed or refused to comply with that order, an order that the transfer of land be executed by the Prothonotary of this court or his deputy.

The history of the matter is long and detailed and it has been very difficult to obtain a grasp of all the material. However, I believe that I now have sufficient understanding of the history to proceed to decide this matter.

The late Maria Balogh had a son, Stephen Szabo, the plaintiff, and a daughter, Victoria Maria Balogh, the defendant. As I understand it, they are half brother and sister. The late Mrs Balogh died on 2 January 2004, leaving a will dated 18 February 1988. In that will, she appointed her husband as her executor, but, if he did not survive her, then she appointed her son, Stephen Szabo, and her daughter, Victoria Maria Balogh, to be the executor and executrix and trustees of her will and estate. The will then provided that the testatrix gave the whole of her estate to her trustee upon trust:

(i)to convert the same into money by sale or otherwise with power nevertheless to postpone the sale and conversion of any part thereof and to retain any part of the estate in the state of investment in which it was at her death,…

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 Szabo v Balogh

Details

AGLC: Szabo v Balogh [2007] VSC 232
Case: [2007] VSC 232
Decision Date: 23 May 2007

CaseChat Overview and Summary

The dispute in this case was between two co-executors of an estate, Szabo and Balogh. Szabo was the plaintiff and sought a declaration that Balogh, the defendant, had refused to sign a transfer of land. Balogh had previously been a sole executor of the estate but had become a co-executor along with Szabo. The defendant resided in the property in question, which formed a substantial part of the estate. Szabo had obtained a judgment for possession of the property, and it was subsequently sold at auction. Balogh objected to the sale but was unsuccessful. Despite being a co-executor, Balogh refused to sign the transfer of land, prompting Szabo to seek a declaration from the court.

The legal issues before the court were whether Balogh had refused to sign the transfer of land and, if so, whether the court should order him to sign it. The court also needed to determine if the transfer should be executed by the Prothonotary in the event that Balogh did not comply with the order. The court considered the nature of the co-executors' relationship and the circumstances surrounding the sale of the property.

The court found that Balogh had indeed refused to sign the transfer of land and granted the plaintiff's request for a declaration to that effect. The court emphasised that the co-executors had an obligation to act jointly in the administration of the estate. The court also noted that the property had been sold at auction, and the sale was valid. The court ordered Balogh to sign the transfer of land, and if he did not comply, the transfer would be executed by the Prothonotary. This decision reinforced the importance of co-executors working together in the administration of an estate.

The final orders of the court were that Balogh was to sign the transfer of land within 14 days or the transfer would be executed by the Prothonotary. The court also ordered Balogh to pay the plaintiff's costs of the proceeding.

Orders