Giurina v Giurina [No 2] [2018] VSCA 311

1 The protagonists in this proceeding are the applicant (Ermanno Giurina), who told the primary judge (McMillan J) that he is 'legally qualified',[1] and State Trustees Limited. State Trustees are the administrator of the estate of the applicant's mother, Licia Giurina.[2] On 3 October 2018, McMillan J made orders in the primary proceeding adverse to the applicant.

2 On 11 October 2018, following a hearing conducted on that day, Whelan JA refused the applicant's application for a stay of the orders made by McMillan J on 3 October 2018. His Honour published reasons for his refusal of the stay application on 17 October 2018.[3]

3 By an application dated 6 November 2018, Mr Giurina has made a second application to stay the orders made by McMillan J. In this application, Mr Giurina seeks 'leave for a rehearing of my stay application which was initially heard on 11 October 2018'.

4 The background to the first stay application was set out by Whelan JA as follows:

Irma Eugenia Locher (deceased) died on 14 February 2003. By her will, she appointed her daughter, Licia Vittoria Giurina, her son-in-law, Orlando Fortunato Giurina, and her grandson, Hermann (also known as Ermanno) Orlando Giurina, as her executors and trustees. Licia Giurina was the sole beneficiary, provided she lived for one month from the date of the testatrix's death.

Probate of the will was granted to Licia Giurina and Ermanno Giurina on 28 June 2007. Orlando Giurina had pre-deceased the testatrix.

The principal asset of the deceased estate is a unit in North Coburg ('the unit').

On 16 April 2018, the Victorian Civil and Administrative Tribunal ('VCAT') appointed State Trustees Ltd as administrator for Licia Giurina.

On 10 August 2018 this proceeding was issued by State Trustees, acting in its capacity as administrator of Licia Giurina, seeking the removal of the executors and trustees, and the appointment of an independent administrator in their place. State Trustees had approached potential independent administrators, but had been unable to procure one willing to act. State Trustees indicated that it was prepared to act as administrator of the deceased's estate.

On 3 October 2018, McMillan J, amongst other things, ordered the removal of Licia and Ermanno Giurina as executors and appointed State Trustees as trustee of the deceased's estate and administrator of the will. On 10 October 2018, McMillan J published reasons for that decision. In substance, her reasons were:

• the inordinate delay in administering the estate;
• Licia Giurina's incapacity; and
• the potential for a conflict of interest between the interests of the estate and Ermanno Giurina's personal interest.[4]

5 The grounds upon which Mr Giurina sought a stay before Whelan JA were as follows:

• McMillan J's decision was erroneous and the appeal had good prospects of success; and
• unless McMillan J's order was stayed, State Trustees would compromise claims between the estate and the Owners Corporation for the North Coburg unit.[5]

6 In the hearing before Whelan JA, Mr Giurina contended that the special or exceptional circumstances that justified a stay[6] were that his proposed appeal would

6 be rendered nugatory if a stay were not granted, because State Trustees would compromise the claims between the estate and the Owners Corporation.[7] As Whelan JA noted,[8] the Owners Corporation claims against the estate the sum of $11,161.72. On 21 September 2017, VCAT ordered the estate to pay this sum together with interest and costs.[9]

7 Whelan JA ruled that no stay should be granted.[10] In so ruling, his Honour said:

There has already been very considerable delay in the administration of this estate. Mr Giurina, the applicant for the stay, has no financial interest in the estate. The only party who does have a financial interest in the estate is his mother, Licia Giurina, and State Trustees as her administrator opposes the stay.

The only ground upon which Mr Giurina says a stay is warranted is his concern that State Trustees will compromise with the Owners Corporation and withdraw the appeal from the VCAT decision concerning the dispute with the Owners Corporation. State Trustees has advised that it will not withdraw the appeal without court sanction.

In the circumstances, I consider that a stay is unwarranted. The application for a stay is refused.[11]

8 On 18 October 2018 (the day after Whelan JA published reasons for refusing the applicant's application for a stay), State Trustees filed an originating motion in the Trial Division seeking the authority of the Court to discontinue the appeal against VCAT's order of 21 September 2017. The approval application was heard by McMillan J on 29 October 2018, together with an application by the applicant that he and Licia Giurina be joined as parties to that application. The judge dismissed the joinder application and, after hearing argument in the absence of the applicant, made orders authorising State Trustees to discontinue the appeal from VCAT's order of

9 In his current application, Mr Giurina describes the basis of the application as being 'new evidence is available to the applicant which was not available at the hearing of the first stay application'. The 'new evidence' is said to be a deed ('the deed'), 'which by virtue of clause 4.1 gives [the applicant] a beneficial and financial interest in the Locher estate sufficient enough [for the applicant] to be granted a stay'. In support of his second application for a stay, the applicant swore an affidavit dealing with his discovery of the deed. The applicant deposed:

At the time of the hearings [before McMillan J and Whelan JA and] on or about the period 14 September 2018 to 12 October 2018 I did not have access to [the deed] as I did not know where it was located after making all reasonable enquiries with the ANZ Bank at Coburg which had been used by Mrs Locher and discussions with Licia Giurina and looking for it at the North Coburg property which is part of the Locher estate and the Williams Road property. In any event, its place of location was in a locked safety box which I did not have the keys to at relevant times.

10 Mr Giurina's application to have the deed admitted as new evidence is an attempt to answer that part of the reasoning of Whelan JA that the applicant 'has no financial interest in the estate'.[13]

11 In his initial affidavit in support of the current application,[14] Mr Giurina notes that State Trustees intend to sell the unit and dispose of its contents. The applicant deposes to being unable to pay for, or arrange, storage of the contents of the unit that belonged to him. Specifically, the applicant says:

Due to an ongoing illness I am not in a position to pay and arrange for a storage facility ... nor do I want the contents removed as in my belief I effectively own them and it is in my belief pointless having to put them into storage when I do not want the unit sold and to put them into storage would be a waste of money given that I do not want the unit sold.

All the contents are of use to me and have immense personal and sentimental value and are irreplaceable. My mother being Licia Giurina would in my opinion also suffer severe stress which may have a serious impact on her health if the contents were to be disposed (sic).

It is my belief that I am the effective owner of the unit so I require the contents left where they are and under no circumstances would I even contemplate selling the unit.

I require access to the unit as I do some work there and also use it for personal matters and to maintain it.

12 State Trustees is prepared to allow the applicant to take all of the chattels located at the unit. It has determined not to dispose of the personal property at the unit until a reasonable period prior to the settlement of the sale of the unit. State Trustees intends to list the unit for auction on 15 December 2018.[15]

13 The respondent submits that the applicant's preference to preserve the unit is 'unrealistic', given various outstanding debts owed by the estate that need to be discharged. The respondent identifies the estate's debts as including:

• Yarra Valley water rates, $8,848.11.
• Moreland City Council rates, $22,029.95.
• VCAT judgment debt of $11,161.72 plus interest.
• VCAT costs orders of $28,155.
• Supreme Court costs orders in relation to the appeal against the VCAT order, estimated to be $50,000.
• A potential costs order against the estate in the Federal Circuit Court, estimated to be $15,000.

14 The respondent submits that it is in the interests of the estate, regardless of the identity of the ultimate beneficiary, for the estate's debts to be paid as soon as possible. As the estate does not have any other substantial assets, the unit needs to be sold to raise the necessary funds to satisfy those debts.

15 Following the filing of the respondent's material, Mr Giurina filed two further affidavits,[16] one sworn by him and one sworn by Licia Giurina. Licia Giurina's affidavit is supportive of the applicant's case and application. In her affidavit, she deposes:

I absolutely do not want the unit ... sold or any of the contents disposed (sic).

Ermanno Giurina has looked after me and cared for me as required since about 1992 after the sudden death of my husband - Ermanno's father.

I remember signing [the deed] back on 27 June 2007 at the time my mother's will was approved and I did so without any pressure put on me by anyone and after the witness explained in Italian everything I was signing.

...

I will appeal the orders of the Tribunal of 16 April 2018 and will request that this be done sooner than usual.

I want the orders made on 3 October 2018 removing myself and Ermanno as executors set aside and support Ermanno in him seeking to do so.

16 Immediately one might observe that the assertion in this affidavit that Mrs Giurina remembers signing the deed 'back on 27 June 2007' is not readily believable having regard , at least, to her age and the elapse of time. It is also to be noted that this recollection is at odds with what was recorded in the VCAT guardianship order about the applicant's recollection of an agreement signed 'shortly after 14 February 2003'.

17 In relation to the applicant's discovery of the deed, in his affidavit sworn 19 November 2018, he deposes:

Since the months from the VCAT hearing of 16 April 2018 I had been looking for the document which I recalled I and Licia Giurina had signed regarding the Locher will but did not remember where we had put it. As deposed [in my affidavit of 6 November 2018] I had made reasonable enquiries and searches but at the time of the removal application before McMillan J and initial stay application before Whelan AJ (sic) I did not have access to it.

It was during the course of the long Melbourne Cup weekend when I was searching for the grant of probate in relation to the Locher will that I located the deed and the keys of the safety box in which it was in.

18 In relation to the estate's debts in respect of the unit, in his 19 November affidavit, the applicant deposes:

I and my mother as then executors were not given any proper paperwork by Moreland Council and Yarra Valley Water that all available concessions on behalf of my late grandmother had been credited to the relevant accounts. If appropriate records are no longer available I had intended to negotiate a discount on these amounts. These accounts in my belief do not provide a reason to sell the unit as I undertake to pay them off whatever final figure is agreed and to my knowledge this can also be done on an instalment basis.

19 In supplementary further written submissions,[17] the applicant states that he has undertaken to pay the amounts of the water rates and council rates, 'so they are not debts of the estate'. Immediately it may be observed that the amounts outstanding have not been paid, and thus remain (at present) debts of the estate. Moreover, the applicant's now expressed willingness to pay the outstanding amounts is not easily reconciled with the applicant's claim in his initial affidavit that he is not in a position to pay for a storage facility because of 'an ongoing illness'. In argument yesterday, the applicant, however, said that (contrary to what he swore in his initial affidavit) he did have the capacity to pay for a storage facility. His point seemed to be that he did not think that he should have to do this because he believed he was the effective owner of the unit and he required the contents to be left in the unit.

20 Clause 1 of the deed provides, 'This is a deed made effective on the date set out in Item 1 of the Schedule'. Item 1 of the Schedule contains the date '28/06/2007'. The deed appears to be signed by the applicant and Licia Giurina. Both signatures appear to have been witnessed by one James Christos. The deed does not contain any other dates, and provides no other indication as to when it may have been signed.

21 Clause 4.1 of the deed is the clause now relied upon by the applicant. Clause 4.1 is headed 'Surrender and Relinquishment', and provides:

Licia Giurina acknowledges that Ermanno Giurina has cared for her for many years. The said Licia Giurina surrenders and relinquishes all formal roles and control in respect of the Trust set up by the Will and surrenders and relinquishes her beneficial interest in favour of Ermanno Giurina arising from the said Trust (in the Will referred to as 'Hermann') and hereby declares that she will not exert any control over such Trust.

22 The order appointing State Trustees as administrator for Licia Giurina was made over the applicant's objection. The order was expressed to have been made because the Tribunal was satisfied that Licia Giurina 'has a disability; is unable by reason of that disability to make reasonable judgments about her personal circumstances and estate; and needs a guardian and an administrator. The order contains the following direction:

Ermanno Giurina, as attorney, is directed that by 30 April 2018 he shall file with the Tribunal and serve on the administrators State Trustees Ltd a copy of the document to which he referred in today's proceedings being an agreement in writing between himself and Licia Giurina signed by both of them shortly after 14 February 2003 to the effect that Licia Giurina would gift to Ermanno Giurina the majority of any interest she receives from the estate of the late Irma Locher. Ermanno Giurina's recollection today was that the agreement would transfer all such interest possibly excluding the contents of Irma Locher's property.

23 In an affidavit sworn 9 August 2018, filed on behalf of State Trustees in the proceeding heard by McMillan J, Sneh Nand deposed (in paragraph 6) to the fact that, as at 9 August 2018, the applicant had not complied with VCAT's direction to provide a copy of the document in which he alleges that Licia 'gifted the majority of any interest she received from the deceased's estate' to him.

24 On 12 September 2018, the applicant swore an affidavit in response in which he said:

In relation to paragraph 6 of the Nand affidavit the Tribunal misunderstood the submission I was trying to make and there has been to my knowledge no gifting.[18]

25 At the time of the application before Whelan JA, Mr Giurina had not filed an application for leave to appeal or his written case. In the circumstances, Whelan JA proceeded on the basis, without considering the applicant's arguments in detail, that his then proposed application for leave to appeal was arguable.[19]

26 The applicant has now filed his application for leave to appeal and written case.[20] The applicant has identified five proposed grounds. Having read the applicant's documents, it may be that the assumption that the applicant's proposed application for leave to appeal is arguable is no longer sound. In light of the history of the matter, however, I am prepared to proceed on the same basis that Whelan JA proceeded - namely that, without considering Mr Giurina's arguments in detail, his proposed application for leave to appeal is, at least, arguable.

27 That said, there is one aspect of one of Mr Giurina's proposed grounds of appeal that may be more problematic.[21] In his first proposed ground of appeal, the applicant asserts that State Trustees had no standing to bring the proceeding below in the name of Licia Giurina. This ground contains three subparagraphs said to be reasons why State Trustees did not have standing. The second of these subparagraphs asserts that:

Licia Giurina does not have the beneficial interest but Ermanno Giurina does and therefore [State Trustees] had no standing to bring the proceeding.

28 In his application for leave to appeal, and in the present application, the applicant seeks to rely on the deed as fresh evidence, supporting his contentions that he has a financial interest in the estate whereas his mother (Licia) has no beneficial interest. In support of his ability to rely on the deed in the current application, the applicant relied upon this Court's decision in Ezra Abrahams Pty Ltd v Milburn.[22] Ezra was, however, a case concerning the proper exercise of a trial judge's discretion to permit a party to re-open its case.[23] Ezra says nothing about the ability of a party to rely on new or fresh evidence once a proceeding or application has been completed. Ezra is no authority for the proposition that an applicant for orders may run that application and, if they lose, seek to run the application again on additional material which could have been produced with reasonable diligence. It is certainly not authority supporting the applicant's contention that he 'can rely on the deed' or that 'in order to do justice in the case this evidence is allowed to be adduced'.[24]

29 Thus, contrary to the applicant's submissions, the applicant must engage with the principles governing applications for leave to adduce fresh evidence - namely that, in order for the evidence to be admitted, the applicant must establish:

(1) By the exercise of reasonable diligence the evidence could not have been discovered in time to be used in the hearing of the earlier proceeding.

(2) It is reasonably clear that if the evidence had been available at the hearing of the earlier proceeding, and had been adduced, an opposite result would have been produced.

(3) The evidence proposed to be adduced is reasonably credible.[25]

30 In the present case it is sufficient to say that, even if one accepts the genuineness and authenticity of the deed, it is far from clear that, by the exercise of reasonable diligence, the deed could not have been produced either before McMillan J or before Whelan JA. While the applicant asserts that in his affidavit of 6 November 2018 he deposed to having 'made reasonable enquiries and searches at the time of the removal application before McMillan J', in truth, nothing in the applicant's material explains why he could not have given evidence before her Honour that he possessed the beneficial interest in the estate or the unit. Further, there is no explanation as to why the applicant could not locate the deed before the earlier hearings, or the circumstances in which (and how) he came to locate it so soon after Whelan JA published reasons for the refusal of the first stay application.

31 Moreover, the applicant's affidavit of 12 September 2018 asserting the absence of any 'gifting' is, to say the least, concerning. That was the occasion on which one might have expected a party who was being frank with the Court to give evidence of the existence of the deed and the circumstances in which it was created.

32 In his supplementary written submission,[26] the applicant sought to explain his apparently conflicting positions, saying:

I have cared for Licia Giurina for many years and she has received a financial benefit from this and I have made personal and financial sacrifices to undertake this care. She herself acknowledges this. There was no pressure put on Licia Giurina to sign the deed and in the circumstances the fair dealing rule has not been breached. In my mind there was no 'gift' in the sense of Licia Giurina simply surrendering and relinquishing her beneficial interest in favour of me simply because I am her son without me having done anything deserving of this act.[27]

33 The applicant's explanation, for swearing on 12 September 2018, 'there has been to [his] knowledge no gifting' (his explanation being that in his mind there 'was no gift')[28] does not, however, sit well with his affidavit of 19 November 2018 that 'since the months from the VCAT hearing of 16 April', where he had been directed to provide the document 'gift[ing] to [him] the majority of any interest' his mother received from the estate, he had been looking for that document.

34 Finally, on the issue of whether the deed is admissible as fresh evidence, I should for the sake of completeness say that, whatever capacity the late production of the deed may have to produce an opposite result, in the circumstances of the present case, I do not need to resolve that issue at this stage having regard to the lack of any real evidence, provided by the applicant on this application, of reasonable diligence by him to obtain the deed at some earlier point in the proceeding.

35 The application for a stay is devoid of merit. Mr Giurina now seeks to pursue a case markedly different from the one he ran before the primary judge, and then again before Whelan JA. His prospects of ultimately being permitted to do so are, on the current material, weak. In any event, there are no special or exceptional circumstances that would warrant a stay.[29] As was observed by Whelan JA, there has already been very considerable delay in the administration of this estate.[30] Mr Giurina has not established any basis for departing from the reasoning and conclusions of Whelan JA.

36 The basis for the applicant's initial application for a stay before Whelan JA was that State Trustees were contemplating compromising claims between the estate and the Owners Corporation for the unit. It was not in contemplation at that time that State Trustees might move quickly to sell the unit.[31] While, like Whelan JA, I am of the view that there is no basis for staying the orders made by McMillan J, subject to hearing further argument from the parties, I may be persuaded to make an order, on appropriate terms, enjoining State Trustees from selling the unit until the hearing and determination of the applicant's application for leave and (if leave is granted) appeal.

37 In argument yesterday, the respondent did not advance any particularly cogent reason why the auctioning of the unit should take place in December this year as against some date in the first half of next year following the conclusion of the proceeding in this Court.[32] My present view, subject to further argument, is that there is something to be said for a relatively short delay in the selling of the unit. A sale of the unit before the hearing and determination of the proceeding in this Court would render the proposed appeal largely nugatory. There is, however, nothing to be said for some more general staying of McMillan J's orders.

38 Mr Giurina's application for a stay of the orders of McMillan J will be dismissed.

[1] Mr Giurina stated this in answer to a question from the judge at the commencement of the hearing of the primary proceeding. See also, Re Giurina [2018] VSC 599 [29] ('McMillan J reasons'). See further, Giurina v Melbourne Health [2018] VSC 143 [27], referred to by the primary judge at McMillan J reasons [28]-[29]. Additionally, in an affidavit sworn 12 September 2018 (referred to below), the applicant swore that he 'had been admitted as a Barrister and Solicitor of this Court'.

[2] According to a heavily redacted Royal Melbourne Hospital record tendered by the applicant as an exhibit to an affidavit sworn by him on 19 November 2018, Licia Giurina was 84 years of age at the time of her admission to that hospital on 4 December 2017.

[3] Giurina v Giurina [2018] VSCA 262 ('First stay reasons').

[6] As to which, see Maher v Commonwealth Bank of Australia [2008] VSCA 122 [19]-[27] ('Maher'); Cellante v G Kallis Industries Pty Ltd [1991] VicRp 99; (1991) 2 VR 653, 655 ('Cellante').

[9] Owners Corporation RP001579 v Giurina [2017] VCAT 1509.

[12] In his affidavit sworn 6 November 2018, the applicant complains that he 'was not given an opportunity to be heard in relation to any direction authorising the discontinuance of that appeal and the matter was heard in private without my presence'. In an answering affidavit sworn by Jasmine Berger, Ms Berger deposes to McMillan J dismissing the applicant's application for joinder, and the applicant then leaving the court before her Honour proceeded to hear the approval application. For present purposes, it is not necessary to resolve whatever factual conflict exists on this issue in these affidavits. The short point is that, on 31 October 2018, orders were made by consent discontinuing the appeal from VCAT.

[15] See the affidavit of Ms Berger sworn on 15 November 2018 in opposition to the present application.

[16] Sworn 19 November 2018. These affidavits did not comply with r 43.01(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015. The applicant's affidavit (like his earlier affidavit sworn 6 November 2018) did not state his place of residence or his occupation. Licia Giurina's affidavit did not state her place of residence. At the commencement of the hearing, the applicant told me that his occupation was 'Australian lawyer' (not possessing a current practising certificate). He then provided the relevant addresses, his mother's being in an aged care facility.

[21] While there are other aspects of other proposed grounds of appeal that are equally problematic (for example the applicant's assertion that the primary judge was wrong to conclude that the delay in the administration of the estate between the death of the deceased in 2003 and October 2018 was inordinate or unwarranted), it is not necessary to analyse those matters further in these reasons.

[22] [2017] VSCA 355 ('Ezra').

[24] Cf 'Further Submissions in Support of Stay Application' [1].

[25] See generally Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632, 635-6; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, 141-2; Clark v Stingel [2007] VSCA 292 [25]; Refaat v Barry [2015] VSCA 218 [76]-[77]; Giles v Jeffrey [2016] VSCA 314 [207]; Pateras v State of Victoria [2017] VSCA 31 [64]-[65].

[27] Footnotes to the deed and affidavits sworn by the applicant and Licia Giurina on 19 November 2018 (and relied upon in this Court by the applicant) omitted. Emphasis added.

[28] Applicant's supplementary written submission dated 19 November 2018.

[29] See Maher [2008] VSCA 122 [19]-[27]; Cellante [1991] VicRp 99; (1991) 2 VR 653, 655.

[32] This Court presently has capacity to hear the application for leave to appeal and appeal (if leave is granted) on a day in March 2019.