Plaintiff v Defendants

The First Defendant was given leave to make submissions on behalf of the third defendant

1. Albert Slawinski ('deceased') died on 9 August 2020. He was survived by his four children; Emily Catherine Findley born 1967, Paul Albert Slawinski ('plaintiff') born 1970, John Marek Slawinski ('first defendant') born 1972, and Edmund Michael David Slawinski born 1975. The deceased's wife predeceased him on 1 May 1996. The deceased made his final will on 27 February 2017 ('Will').[1]
2. The deceased's Will appointed the first defendant as executor and trustee of his estate; directed that all real and personal property be sold; and left the following percentages to his children:[2] 5% to the plaintiff; 15% to Emily; 30% to Edmund; and 50% to the first defendant.
3. On 3 December 2021, probate was granted to the first defendant.
4. The initial Inventory of Assets and Liabilities valued the net estate at the date of probate at $3,083,946.45, including real and personal property and a number of liabilities. The inventories include one of two shares in the third defendant. The inventory, and an updated inventory, are discussed further below.
5. The second defendant (in liquidation) is trustee of the Carrum Unit Trust. The proceeding against the second defendant is stayed. The third defendant holds half of the units in the Carrum Unit Trust as trustee of the Albert Slawinski Family Trust, but it is unclear whether the other units are held by the deceased's estate, or by the third defendant as trustee of the Albert Slawinski Family Trust. The specified beneficiaries of the Albert Slawinski Family Trust are the plaintiff, the first defendant and their two siblings. The named shareholders of the third defendant are the deceased and the first defendant. By his office-holding and shareholding, the first defendant controls the third defendant.
6. The plaintiff submits that: the first defendant has unduly delayed in the administration of the estate; has conflicts of interest; and has failed to discharge his obligations as executor and trustee of the estate and in relation to other trusts. By his originating motion filed on 16 April 2025, the plaintiff seeks orders for:

(a) the removal of the first defendant as executor of the deceased's estate pursuant to s 34(1)(c) of the Administration and Probate Act 1958 (Vic) ('AP Act') and appointment of substitute administrator and vesting orders;

(b) the removal and replacement of the first defendant as trustee of the deceased's estate pursuant to ss 48(1) and 51 of the Trustee Act 1958 (Vic) ('Trustee Act') and vesting orders;

(c) the removal and replacement of the second defendant as trustee of the Carrum Unit Trust, and the third defendant as trustee of the Albert Slawinkski Family Trust;

(d) delivery up of trust and estate documents; and

(e) indemnity costs with a right of indemnity.

1. The second defendant was placed in liquidation on 26 July 2023. On 30 October 2025, Lorenz JR made orders, noting in other matters that the liquidator of the second defendant (which is trustee of Carrum Unit Trust) had appeared and excused them from attending the hearing. Lorenz JR further noted that the plaintiff would not seek the relief sought in respect of the second defendant at this stage but reserved his position to proceed at a later stage.

(a) affidavits of Paul Albert Slawinski sworn on 15 April 2025, 7 August 2025 and 30 March 2026;

(b) summons for directions filed on 16 April 2025;

(c) consent of beneficiary filed on 16 April 2025;

(d) affidavits of attempted service and service of Geoffrey Dunlop sworn on 8 July 2025 and 15 July 2025;

(e) affidavits of service of Roger Blythyman sworn on 23 July 2025, 2 September 2025, 18 September 2025, 18 September 2025, and 14 November 2025; and

(f) written submissions filed on 19 March 2026.

1. The first and third defendants have not filed an appearance or any material, but the first defendant appeared at trial for himself and sought to make submissions on behalf of the third defendant. Rule 1.17 of the Supreme Court (General Civil Procedure) Rules 2025 provides that 'except where otherwise provided for under any Act or these Rules or as the Court otherwise orders, a corporation ... shall not take any step in a proceeding save by a solicitor.'[3] In determining whether to grant an unqualified person leave to represent a corporation, the Court must have regard to the administration of justice which includes the interests of all parties.[4] The plaintiff did not oppose the first defendant making submissions for the third defendant. I granted leave to the first defendant to make submissions on behalf of the third defendant having regard to all the circumstances including the nature and purpose of the company, the interests of the parties, and the necessity to deal with the application as expediently as possible.
2. The first defendant said that he had access to documents that he considered would support his position although he did not have them in Court, and they have not previously been produced. The first defendant sought an adjournment until after July 2026 to obtain and present such documents. The adjournment was sought for that period of time for medical reasons. The plaintiff opposed the adjournment, and it was not granted for the reasons given. The first defendant gave oral evidence.

1. The Will provides:
   1. I GIVE DEVISE AND BEQUEATH the whole of my property both real and personal of whatsoever nature and wheresoever situate and of what kind so ever including any property over which I may have a power of appointment or disposition unto my trustee UPON TRUST to sell call in and convert into money such part or parts thereof as shall not consist of money with power to my trustees to postpone the sale calling in and conversion of any part thereof for so long as my trustee shall think fit notwithstanding that it may be of a terminable or wearing nature or may consist of hazardous investment and so that no reversionary interest shall be sold unless my trustee shall see special reason for so doing.
   2. I DIRECT my trustee that after payment of all my just debts and funeral and testamentary expenses and all death estate and succession duties both State and Federal upon the whole of my dutiable estate to pay and transfer the whole of the residue of my estate (including any interest or estate in any discretionary, family and/or property trust in which I may hold an interest as at the date of my death) as follows, namely as to:

(i) 5% to my son PAUL ALBERT SLAWINSKI for his own use and benefit absolutely;

(ii) 15% to my daughter EMILY CATHARINE [sic] FINDLEY (nee SLAWINSKI) for her own use and benefit absolutely;

(iii) 30% to my said son EDMUND MICHAEL DAVID SLAWINSKI, for his own use and benefit absolutely; and;

(iv) the residue, namely 50% to my said son JOHN MAREK SLAWINSKI for his own use and benefit absolutely;

1. In making this my will I have had careful regard to the various spurious allegations and claims made against me by my said son PAUL ALBERT SLAWINSKI in relation to various properties owned by me (including 365 and 367 Whitehorse Road Nunawading) and in relation to an interest claimed by my said son PAUL ALBERT SLAWINSKI IN THE property situate at 7 5 Mt Riddell Road, Healesville and the stress, upset and financial expense imposed upon me at a time when I am in ill health and of advanced years. I say that more than adequate provision has been made for the maintenance and support of my said son PAUL ALBERT SLAWINSKI during my lifetime and shall be limited only to his bare legal interests in the Whitehorse Road and Mt Riddell properties aforesaid. It is my wish and my direction that my said son PAUL ALBERT SLAWINSKI shall not share in and/ or benefit out of my estate other than as expressly conferred upon him under this my will.

1. On 3 December 2021, probate was granted to the first defendant.[5]
2. An initial inventory records the following assets and liabilities:

(a) two of three equal undivided shares in 81 Don Road, Healesville (volume 8244 folio 409) valued at $320,000;

(b) nine of ten equal undivided shares in 365 Whitehorse Road, Nunawading (volume 7563 folio 017) valued at $850,500;

(c) nine of ten equal undivided shares in 367 Whitehorse Road, Nunawading (volume 8102 folio 963) valued at $877,500;

(d) one of three equal undivided shares in 369 Whitehorse Road, Nunawading (volume 8158 folio 058) valued at $296,666.67;

(e) $2,083.74 of cash in a bank account;

(f) two fully paid shares in the second defendant valued at $2;

(g) one fully paid share in the third defendant valued at $1;

(h) shares in New Age Exploration Ltd valued at $14;

(i) outstanding loan of $1,153,870.46 owed by the second defendant; and

(j) a boat and trailer valued at $1,500.

(k) funds owing to the first defendant 'for property expenses paid' $256,780.62;

(l) funds owing to the first defendant 'for property expenses paid' $145,858.32;

(m) total proportional land tax debt of $14,435.58; and

(n) ASIC overdue fees of $613.

1. On 10 November 2017, three years prior to the deceased's death, orders were made in the Victorian Civil and Administrative Tribunal ('VCAT') for the sale of the properties at 365, 367 and 369 Whitehorse Road,[6] and for the net proceeds to be distributed as follows:

(a) one third to the first defendant;

(b) seven eighteenths to the deceased; and

(c) the remainder to the plaintiff.[7]

1. Those properties remain unsold.
2. The first defendant provided the plaintiff with an updated inventory on 16 August 2024. The updated inventory excludes the loan of $1,153,870.46 and also records land tax owed on the estate properties in the amount of $41,710.15. The updated inventory also records 'unknown' for ATO tax liabilities for the financial years ending 30 June 2023 and 30 June 2024.
3. At all relevant times prior to the grant of probate to the present, the first defendant has been living at the 369 Whitehorse Road property.
4. The second and third defendants are trustees of family trusts and are relevant to this proceeding having regard to dealings with a property at 695 Nepean Highway. The property at 695 Nepean Highway was purchased in 1988 by the second defendant as trustee for the Carrum Unit Trust pursuant to an arrangement between the first defendant and his brother John Peter Slawinski using the vehicle of the Carrum Unit Trust. The first defendant is the director and secretary of the second defendant, which was placed into liquidation on 26 July 2023 by reason of the failure to pay land tax.
5. When the land was purchased there were two equal unit holders in the Carrum Unit Trust:

(a) Fiftieth Sepelda Pty Ltd, as trustee for the John Peter Slawinski Family Trust (being the deceased's brother's interest); and

(b) Forty Seventh Sepelda Pty Ltd as trustee for the Albert Slawinski Family Trust (being the deceased's interest). The deceased's four children are specified beneficiaries of the Albert Slawinski Family Trust.

1. In 2013, a dispute developed between the deceased and his brother. The plaintiff says that the deceased bought out his brother pursuant to an agreement entered into in about September 2013 although it is unclear whether the deceased's brother's interest was purchased by, or transferred to, the deceased personally or to the third defendant. By that agreement, $700,000 was borrowed from Fred Wilson Superannuation, and secured against 695 Nepean Highway. The plaintiff says that, as at 19 July 2024, the amount owing pursuant to that line of credit was $1,804,904.
2. In 2024, the liquidator sold the property at 695 Nepean Highway for $3.32 million leaving a net balance from the proceeds of sale of approximately $1.28 million which the liquidator holds.
3. Current company records indicate that the first defendant is director and secretary of the third defendant, and that one of two issued shares is held by the first defendant and the other share is still in the name of the deceased.
4. The main issue concerning the third defendant is the question of the arrangement between the deceased and his brother as to the purchase of the brother's interest in the Carrum Unit Trust; and whether those units are now held beneficially by the deceased's estate, or the Albert Slawinski Family Trust.
5. As indicated above, the plaintiff seeks orders that the third defendant be removed and replaced as trustee of the Albert Slawinski Family Trust so that those questions can be answered.

1. The Court has the power to remove and replace an executor pursuant to s 34(1)(c) of the AP Act where the executor refuses or is unfit to act in such office or is incapable of acting. The Court is empowered to remove and replace trustees pursuant to ss 48 and 51 of the Trustee Act where it is 'expedient' to do so.
2. For present purposes, the principles in relation to the removal of an executor and the removal of a trustee, are broadly the same.[8] The circumstances warranting removal of executors include:

(a) unwarranted delay in administration of the estate;

(b) failure to communicate with beneficiaries;

(c) failure to account;

(d) unreasonable delay in paying beneficiaries entitlements; and

(e) conflicts of interest.[9]

1. The considerations in relation to removal of trustees include:

(a) the interests of the beneficiaries;

(b) the security of the trust property;

(c) efficient and satisfactory execution of the trusts and faithful and sound execution of powers; and

(d) any conflicts of interest.[10]

Consideration of replacement of executor and trustee of the will and estate

1. The plaintiff submits that there has been undue delay in the administration of the estate by the first defendant. The plaintiff submits that it has been more than five years since the deceased's death, more than four years since probate, and 'not a single step has been taken in the estate administration.' It is apparent from the terms of the Will that all real and personal property was to be sold and the residuary estate was to be distributed in the percentages provided. Notwithstanding those terms, the properties remain unsold, and no distribution has been made.
2. The first defendant gave evidence, by way of explanation, that delay had been caused by COVID‑19 restrictions, difficulties in communicating with his lawyers, and health issues including an operation on his leg and cancer treatment. The first defendant also said much work had been done in maintaining the properties and cleaning them up. The first defendant also stated that the deceased left his papers in a state of disarray and he had been working consistently to bring those records into a state of order. In answer to the question why the properties at Whitehorse Road had not been sold, the first defendant said the plaintiff had opposed the sale of 365 Whitehorse Road and further, that 369 Whitehorse Road belonged to him, that is, the first defendant.
3. The first defendant's explanations for the delay are unsatisfactory. The delay has been excessive and the explanations given do not provide adequate justification for the apparent lack of action over an extended period of time. While I accept that the estate may be complicated and difficult to manage, it is not apparent to me that any particular difficulties could not have been dealt with within a much shorter timeframe than has already expired.

1. The plaintiff raises a number of conflicts of interest. For present purposes, it suffices to refer to the following two.
2. First, the first defendant claims that the deceased's estate owes him $256,780.62. The first defendant gave evidence that this amount reflects amounts that have been spent by him in maintaining the estate. The first defendant said that he had documentary evidence to establish that entitlement, although it has not been produced. The plaintiff submits that the fact of this claim puts the first defendant in a position of conflict as executor, as he has obligations in the administration of the estate while, at the same time, claims that the estate owes him a significant amount of money which has not been substantiated.
3. Second, the first defendant is living at the property at 369 Whitehorse Road and claims that it belongs to him. The first defendant asserts this notwithstanding that: 369 Whitehorse Road is in the deceased's name; the deceased purports to deal with 369 Whitehorse Road in his Will; and the inventory of assets and liabilities includes 369 Whitehorse Road as an asset of the estate. Further, on 6 August 2025, VCAT ordered the sale of the estate properties, including 369 Whitehorse Road, and made orders for the distribution of sale proceeds.
4. In early 2026, the properties at 365, 367 and 369 were put on the market through Woodwards real estate agents. By email dated 22 January 2026, and notwithstanding the terms of the Will and the VCAT orders, the first defendant wrote to the real estate agent and demanded that the properties be withdrawn from sale. In his evidence, the first defendant stated that it was his intention to retain the property at 369 Whitehorse Road. The plaintiff submits that this is another clear conflict.
5. I agree that the first defendant's assertion of ownership of the 369 Whitehorse Road property, and his stated intention to maintain that ownership, are inconsistent with his duties as executor to sell the properties and distribute the proceeds of sale in accordance with the Will. The first defendant is clearly in a position of conflict of interest.

1. The plaintiff submits that the first defendant has failed to explain why:

(a) the $1,153,870.46 loan owing from Forty Second Sepelda appeared in the initial inventory but was removed from the updated inventory;

(b) State Revenue debts have not been paid but rather have increased from $14,435.58 to $41,710.15 between inventories. The first defendant gave evidence that these debts have not been paid because there are no funds to pay them. The first defendant added in evidence that the debts can be paid when properties are sold, although it is unclear when that would occur and the first defendant indicated there were impediments to doing so;

(c) the inventories do not accord with the deceased's actual interests in the VCAT orders made on 10 November 2017 for the sale of the Whitehorse Road properties;

(d) neither the initial nor the updated inventory includes the deceased's 18 vehicles and other equipment. However, I note that in his evidence the first defendant said the vehicles do not form part of the estate as they were given to the first defendant and his other brother. No details as to when or how any such gift was given has been provided, save that the first defendant said it was well before the deceased's death; and

(e) the first defendant is owed $256,780.62. The first defendant said in evidence that this was for expenses in maintaining the estate properties.

1. The plaintiff also relies on the fact that the first defendant failed to appear both personally and on behalf of the estate at a VCAT hearing concerning the sale of the property at 369 Whitehorse Road, and also has not filed an appearance in this proceeding.

1. I am satisfied that an order should be made removing the first defendant as executor and trustee of the deceased's estate. There has been excessive and unjustified delay in administering the estate. The explanations that the first defendant has given for such delay may account for some part of it, but they do not justify delays of the extent actually experienced. Even allowing for some delay as a result of COVID‑19 or health issues, it is clear that many steps in the administration of the estate could and should have been advanced since probate was granted. There are good reasons why estates should be administered expediently, including the interests of beneficiaries. That may well include alleviating the first defendant's admitted financial stress.
2. In addition to delay, the obvious conflicts of interest also require the first defendant to be removed and replaced. The fact that the first defendant is claiming $256,780.62 without any present verification of the claim, places the first defendant in an obvious source of conflict. Similarly, the first defendant's insistence that the property at 369 Whitehorse Road belongs to him personally, and that he will seek to retain it, places him in an irreconcilable position of conflict having regard to the terms of the Will and the identification of that property as an asset of the estate, and the orders of VCAT.
3. For those reasons, orders will be made removing the first defendant as executor and trustee, and appointing an independent administrator and trustee and vesting the estate properties accordingly.

Consideration of replacement of trustee of third defendant

1. The plaintiff submits that the financial position of the Albert Slawinski Family Trust, of which the third defendant is trustee, is unknown as the first defendant has not filed any material. Further, there is no evidence that the third defendant has taken any steps to call in its interest as unit holder in the Carrum Unit Trust.
2. The plaintiff also submits that the third defendant, under the control of the first defendant, is not fit to for the office of trustee. The plaintiff relies on the conduct of the first defendant in failing to assist the liquidator of the second defendant, and failing to appear in the VCAT proceeding and this one.

1. The plaintiff submits that the first defendant has a conflict of interest between his role as controller of the third defendant on the one hand, and as estate executor, on the other given that there is an apparent dispute over who holds half of the units in the Carrum Unit Trust. As discussed above, one half of the units in the unit trust are held by the third defendant on trust for the Albert Slawinski Family Trust. It seems uncontroversial that the other units are held either by the deceased's estate or on trust for the Albert Slawinski Family Trust. If the units are held by the deceased's estate, then the first defendant will be entitled to 50% of their value. If the units are held by the Albert Slawinski Family Trust, then the first defendant will be one of four specified beneficiaries in relation to that entitlement.

Poor health, poor relationships and governance issues

1. The plaintiff submits that the first defendant's health is such that he is unable to discharge his obligations in controlling the third defendant. Further, the plaintiff submits, the first defendant has poor relationships with two other beneficiaries of the relevant trust including with the plaintiff who, the first defendant says, took out an intervention order against him.

1. I consider that it is appropriate to order the third defendant be removed and replaced as trustee of the Albert Slawinski Family Trust for the following reasons.
2. First, the first defendant has had significant health issues for some time. It is apparent from the first defendant's evidence that those health issues have significantly impaired his ability to administer the estate, it is also apparent that they will continue for several months. There are pressing issues in relation to the administration of the estate which include questions around the third defendant's conduct and what it should do. I am satisfied there is a real risk that those issues will not be dealt with expediently if the first defendant remains trustee under the control of the third defendant.
3. Second, the first defendant is in a position of conflict in relation to the question who holds the units in the Carrum Unit Trust, as that may affect his entitlements to the value of the corpus of the trust. If the Carrum Unit Trust units belonged to the deceased, then they will form part of the estate and be distributed under the terms of the Will, which means the first defendant stands to receive 50%. But if the units are held by the trust, then the first defendant's entitlement to that share will be as one of four beneficiaries.
4. Third, it is apparent from the first defendant's evidence that there is significant disagreement between the plaintiff and the first defendant that likely goes beyond the subject matter of this dispute. There is a real question as to whether the first defendant will be able to discharge his obligations as controller of the third defendant in accordance with the obligations of a trustee in the face of the intrusion of significant personal issues.
5. For those reasons, the third defendant should be removed as trustee of the Albert Slawinski Family Trust, and the appointment and vesting orders made.

1. The plaintiff submitted that if the relief sought is granted, then the first defendant should pay costs on an indemnity basis without an indemnity from the estate or the trust, such costs to be retained from his share of the estate or trust. The first defendant did not address the question of costs.
2. I direct the parties to provide draft orders reflecting these reasons, including as to costs if they can be agreed, by 15 April 2026. If they cannot be agreed then the matter will be listed for a further mention.

FORTY SECOND SEPELDA PTY LTD (in its own capacity and as trustee for the Carrum Unit Trust) (In Liquidation) (ACN: 007 047 387)

FORTY SEVENTH SEPELDA PTY LTD (in its own capacity and as trustee for the Albert Slawinski Family Trust) (ACN: 007 047 430)

[1] Affidavit of Paul Albert Slawinski filed on 16 April 2025 ('Slawinski 1'), [1]-[3].

[2] Ibid [4]; The Last Will and Testament of Albert Michael Slawinski dated 27 February 2017, Slawinski 1 (n 1) Exhibit PAS-1 p 20.

[3] Supreme Court (General Civil Procedure) Rules 2025 r 1.17(1).

[4] See discussion in Worldwide Enterprise Pty Ltd v Silberman [2010] VSCA 17, [32]-[41].

[5] Ibid [5]; Slawinski 1 (n 1) Exhibit C, p 23.

[6] VCAT Reference BP698/2016, John Marek Salwinski and Albert Michael Slawinski v Paul Albert Salwinski Order 10 November 2017, order 2.

[8] Fysh v Coote [2000] VSCA 150, [20] (Ormiston JA, with whom Batt and Chernov JJA agreed), [20].

[9] Monty v Delmo [1996] VicRp 7; [1996] 1 VR 65, 82.

[10] Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, 580-1 (Dixon J (with whom Evatt and McTiernan JJ agreed)).