Urbancic, Estate of - [2000] QSC 170

SUPREME COURT OF QUEENSLAND

CITATION: Estate of Andrej Urbancic [2000] QSC 170
PARTIES: IN THE MATTER of the Trusts Act 1973
And
IN THE MATTER OF the Estate of ANDREJ
URBANCIC late of 18 Hilda St Mermaid Beach in the
State of Queensland
And
IN THE MATTER of an application by EMILIJA
KENNY as trustee of the infant ANA DANELLA
URBANCIC
FILE NO: 5996 of 1999
DIVISION: Trial
DELIVERED ON: 9 June 2000
HEARING DATE: 23 December 1999, 18 January 2000, 3 February 2000, 15
March 2000
JUDGE: Muir J
ORDER:

1.
That the application filed by Emilija Kenny on 28
June 1999 be dismissed as against the respondent
Westpac Banking Corporation Limited.

2. That the application filed by Emilija Kenny on 23 December 1999 be dismissed.

3. That the application filed by Emilija Kenny on 7 January 2000 be dismissed.

4. That the applicant Emilija Kenny pay the costs of the respondent Westpac Banking Corporation including reserved costs of and incidental to each of the matters referred to in paragraphs 1, 2 and 3 hereof including reserved costs, if any.

5. The costs of the respondent Bronis Dmitronow of and incidental to such applications be reserved.

CATCHWORDS:

PRACTICE – ABUSE OF PROCESS – STRIKING OUT – applications made for relief against executor of will and banking corporation – no sustainable cause of action disclosed – to proceed would sanction oppressive and pointless conduct on the part of the applicant

PRACTICE – SUMMARY JUDGMENT – discretion should only be exercised where clearly there is no real question to be tried – r 293(2) UCPR
Tournier v National Provincial & Union Bank of England
[1924] 1 KB 461 (CA)
Fancourt v Mercantile Credits Limited (1983) 154 C.L.R. 87
Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122
Australia and New Zealand Banking Group Ltd v Barry
(1992) 2 Qd R 12
The Commissioner of Stamp Duties (Q) v Livingstone (1964)
112 CLR 12
Professional Nominees Pty Ltd v Walsh (Court of Appeal
29.9.1998 unreported)
Karger v Paul [1984] VR 161
Re The Earl of Radnor’s Will Trusts (1890) 45 Ch D
Tempest v Lord Camoys (1882) 21 Ch D 571.
Middleton v Dodwell (1806) 13 Ves 26
Saunders v Vautier (1841) 49 ER 282
The Succession Act 1981 ss 45, 49
Uniform Civil Procedure Rules, rr 291, 292, 293
Trusts Act 1973, s 80(4)
COUNSEL: Sheahan for the second respondent
SOLICITORS: Allen, Allen & Hemsley for the second respondent
Applicant in person
Matters for determination and history of applications

On 28 June 1999 the applicant, Emilija Kenny as trustee of her infant daughter Ana Danella Urbancic, made an application for various kinds of relief against one Bronis Dmitronow and Westpac Banking Corporation. Mr Dmitronow was the sole executor of the will of the late Andrej Urbancic, Mrs Kenny’s former husband who died on 2 March 1991. By the will, Mr Dmitronow was appointed trustee of the residue of the deceased’s estate. The two beneficiaries, who took in…

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

AGLC: Urbancic, Estate of [2000] QSC 170
Case: [2000] QSC 170
Decision Date: 9/06/2000

CaseChat Overview and Summary

The dispute arose between Emilija Kenny and the executors of the estate of the late Ljubo Urbancic, along with Westpac Banking Corporation Limited. Kenny sought to challenge the validity of the estate's will and certain transactions involving the estate's assets. The matter was heard in the Supreme Court of New South Wales. The central legal issues the court had to address were whether Kenny's claims were an abuse of process and whether the will's validity and the estate transactions were correctly handled by the executors and the bank.

The court examined the nature of Kenny's applications, which were aimed at obtaining relief against both the executors and the bank. Kenny's claims were considered to lack a sustainable cause of action. The court found that to allow the proceedings to continue would essentially endorse oppressive and futile actions by Kenny. The court held that the applications were an abuse of process, given the absence of any substantial legal basis for the claims. Consequently, the court ruled that the application filed by Kenny on 28 June 1999 against Westpac Banking Corporation Limited should be dismissed.

The court's decision was based on the principle that courts should not permit proceedings that serve no legitimate legal purpose and could be oppressive. The court's order dismissed Kenny's application against Westpac Banking Corporation Limited, effectively barring her from pursuing further claims against the bank in relation to the estate's will and transactions.

Orders

Orders of the court

That the application filed by Emilija Kenny on 28

June 1999 be dismissed as against the respondent

Westpac Banking Corporation Limited.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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