Plaintiffs v Defendants

1. Mr Giurina submits that the OC's failure to comply with s 18 of the OC Act impacts upon the standing of Ms Deak and Strata Connect to bring this proceeding. Mr Giurina argues that Ms Deak and Strata Connect rely upon the OC's authority to commence this proceeding, such that if the proceeding by the OC is dismissed, the claims brought by Ms Deak and Strata Connect should also be dismissed.
2. As I understand this argument, Mr Giurina submits that Strata Connect, as the manager of the OC, does not have the power to commence proceedings absent a special resolution passed under s 18 of the OC Act. In support of his argument, Mr Giurina relies upon s 11(3)(a) of the OC Act, which provides that an owners corporation must not delegate a power or function that requires a special resolution at a general meeting. He also relies upon what he believes are the terms of Strata Connect's contract with the OC.[39] Clause 3.2 of this contract addresses the delegation by the OC and the committee to Strata Connect of all the powers and functions of the OC that are necessary for Strata Connect to perform its duties.[40] The delegation expressly includes the power to sign documents on behalf of the OC, other than documents requiring a unanimous resolution, special resolution or the seal of the Owners Corporation.[41]
3. Mr Giurina submits that as Ms Deak is Strata Connect's director, she will only have the power to commence this proceeding if the OC and Strata Connect are also so empowered.
4. I do not accept Mr Giurina's submissions that s 11(3)(a) of the OC Act, or cl 3.2 of the management contract, restrict Strata Connect and Ms Deak's ability to bring this proceeding.
5. This is because Strata Connect and Ms Deak do not bring this proceeding on behalf of the OC, or in the name of the OC. They are not purporting to exercise a power or function of the OC which requires a special resolution under the OC Act or under the management contract. Rather, Strata Connect and Ms Deak bring this proceeding in their capacity as judgment creditors pursuant to the Costs Orders.
6. The terms of the Costs Orders are:
   1. The applicant pay the respondents' costs of its application made by summons filed on 13 March 2018 and the respondents' costs of the applicant's application made by summons filed on 19 April 2018 on an indemnity basis.
   2. The applicant otherwise pay the costs of the proceeding, including any reserved costs, on an indemnity basis. The costs order made on 2 July 2018 is an exception to this order.[42]
7. The applicant in those proceedings was Mr Giurina, and the respondents were Ms Deak, Strata Connect and the OC. The Costs Orders are in favour of Ms Deak, Strata Connect and the OC jointly as the respondents to the proceeding.
8. The plaintiffs' counsel submitted that Ms Deak and Strata Connect have the right to recover the Costs Orders, and the relief can be granted to those plaintiffs with or without the OC remaining as a party. This submission was made without reference to authority.
9. Contrary to the plaintiffs' submission, it is arguable that the rights of the judgment creditors sought to be exercised in this proceeding ought to be exercised jointly.[43] That is, it may be arguable that given the Costs Orders were made jointly in favour of Ms Deak, Strata Connect and the OC, all three of them must be party to this proceeding.
10. Rule 9.03(1) of the Rules provides for this as the default position. It states:

(1) Except by order of the Court or as provided by or under any Act, where the plaintiff claims any relief to which any other person is entitled jointly with the plaintiff -

(a) all persons so entitled shall be parties to the proceeding; and

(b) any person who does not consent to being joined as a plaintiff shall be made a defendant.

1. No submissions were made by the parties as to whether it was necessary for the OC to remain a party to this proceeding by reason of the Costs Orders being made in favour of the plaintiffs jointly.
2. To the extent it is necessary for an order to be made under r 9.03(1) for this proceeding to continue in the absence of the OC, I consider it is appropriate to make such an order. This is because the Warrant has been issued by the plaintiffs jointly, and the Warrant is the process by which the joint judgment is sought to be enforced.[44] There is no requirement in s 18 of the OC Act for a special resolution authorising the OC to issue the Warrant. The Warrant is a process of the Court, but it is not a proceeding.[45] This proceeding seeks orders to aid enforcement of the Costs Orders via the Warrant. Accordingly, given that the OC issued the Warrant as a joint creditor, this is not a case where it would be appropriate for the OC to be joined as a defendant to the proceeding as contemplated by r 9.03(1)(b) of the Rules. The dismissal of this proceeding insofar as it is brought by the OC is the consequence of its failure to comply with s 18 of the OC Act, which gave rise to a procedural irregularity. Whilst the OC's failure to comply with s 18 may found grounds for refusing to allow the proceeding to continue in its absence, in my view, this would not promote the overarching purpose that the Court is required to give effect to under s 8 of the Civil Procedure Act 2010 (Vic) ('Civil Procedure Act'). Such an outcome would not promote the just, efficient, timely and cost-effective resolution of the real issues in dispute in this proceeding. The absence or presence of the OC as a party to this proceeding is not germane to the real issues in dispute. Rather the real issues in dispute are whether Mr Giurina has an interest in the proceeds of sale of the Property, and if so, whether it is appropriate to grant the relief sought by the plaintiffs. It is appropriate for those issues to be determined without further cost and delay.

D What property is available to meet the Costs Orders?

1. The Warrant instructs the Sheriff to levy on the property of Mr Giurina which is authorised by law to be taken in execution. The Warrant says:

To the Sheriff

In respect of the judgment (or order) made by Gourlay JR on 6 December 2018 (pursuant to the orders made by Ierodiaconou AsJ on 30 July 2018) by which it was adjudged (or ordered) that Ermanno Giurina pay $39,840.13 to the Defendant, Levy on the property of Ermanno Giurina which is authorised by law to be taken in execution of the sum of -

(a) $39,840.13, being the amount now due and payable for which judgment was entered or giving.

(b) $1,492.90 being the amount now due and payable in respect of professional costs and fees.

(c) $19,538.04, being the amount due and payable for interest accrued in the [sic] respect of the judgment amount and the amount of costs at the date of the issue of the warrant, at the rate fixed in accordance with law.

(e) your fees and expenses for this (and for any prior) warrant.

And Pay the amount so levied other than your fees and expenses to the Defendants or otherwise as the law requires...[46]

1. The plaintiffs attempted to have a warrant issued in respect of the Costs Orders that included a statement that the Property is affected by the warrant. That warrant was rejected by the Court's registry, as Mr Giurina is not the registered proprietor of the Property.[47] The consequence of this is that the Warrant may not bind or affect the Property, and therefore the Property is not able to be sold pursuant to the Warrant.[48]
2. In order to determine whether the proceeds of sale of the Property are available to meet the Costs Orders in execution of the Warrant, it is necessary to consider the law relating to the property that may be seized and sold by the Sheriff in execution of the Warrant, which I address in Part D.2.
3. As any interest Mr Giurina may have in the proceeds of sale of the Property arises pursuant to the deceased's will, I address the circumstances in which a beneficiary's rights in a deceased estate are available to meet a judgment debt in Part D.3.

D.2 What property may the Sheriff seize and sell?

1. Pursuant to s 23 of the Sheriff Act, the Sheriff has the power to seize or take possession of 'recoverable property' of the judgment debtor regardless of who has possession of it, in accordance with the relevant court and enforcement legislation or a warrant that authorises seizure of the property.[49] 'Recoverable property' is defined to mean property specified in a warrant that may be lawfully seized under the warrant.[50] The Sheriff has the power to sell or otherwise deal with seized property for the purpose of applying the proceeds of sale to the payment of a 'payable amount'.[51] Relevantly, 'payable amount' is defined to mean the amount specified in a warrant of seizure and sale as being required to be paid by the person named or described in the warrant.[52]
2. As neatly summarised in Zuckerman on Australian Civil Procedure:

The property which may be seized by the sheriff must be owned (either wholly or jointly) by the judgment debtor. Such property may include money and property in which the judgment debtor has an equitable interest.[53]

1. The common law, together with ss 208 and 219 of the Property Law Act , and s 42 of the Supreme Court Act 1986 (Vic) ('Supreme Court Act') govern the property of the judgment debtor that is available to be seized and sold by the Sheriff.

D.2.1 Property available to meet a judgment debt

1. The following property is available to meet a judgment debt:

(a) at common law, all goods and chattels belonging to the judgment debtor that are capable of sale;[54]

(b) pursuant to s 208(1) of the Property Law Act, all land, or interest in land belonging to the judgment debtor, including an equity of redemption, and powers vested in the judgment debtor in respect of their interest in the land. This provision has been described as applying to 'every possible estate and interest in land of every possible description',[55] and it extends to equitable interests in land;[56] and

(c) pursuant to s 219 of the Property Law Act, all money, bank notes, cheques, bills of exchange, promissory notes, bonds, specialities or other securities for money belonging to the judgement debtor.

1. Where the property of the judgment debtor includes real property, the Property Law Act, Transfer of Land Act, and the Rules provide a regime by which that property may be seized and sold. In order for land to be subject to execution under a warrant of seizure and sale, the warrant must specify the land, and the warrant must be registered against the title of the land.[57] Where the Prothonotary is satisfied that the judgment debtor is the registered proprietor of land, a warrant of seizure and sale will include a statement to the effect that the land is affected by the warrant.[58]
2. The Rules do not provide for a procedure for specifying land in which the judgment debtor has an interest other than that of a registered proprietor, such as an equitable interest. To address this, the Court may grant declaratory relief to clarify that the land is affected by a warrant,[59] or may appoint a receiver to assist in the enforcement of a judgment over the equitable interest.[60] Where there is evidence that the judgment debtor may have an equitable interest in land, but there is some doubt, the Court may appoint a receiver over the judgment debtor's equitable interest in the land so that the receiver has standing to apply for a declaration that the judgment debtor has an interest in the land.[61]

D.2.2 Property that is not available to meet a judgment debt

1. The following property is not available to meet a judgment debt:

(a) property that the judgment debtor holds, but is owned by another person. For example, property held by the judgment debtor as trustee of a trust, or of which the judgment debtor is bailee, or goods which have been sold to a third party and the like. Such property will not belong the judgment debtor, and accordingly, the Sheriff is not empowered under a warrant to seize and sell it;[62] and

(b) pursuant to s 42 of the Supreme Court Act, property that would not be divisible amongst a bankrupt's creditors is excluded from being available to satisfy a judgment debt. That is, certain prescribed household property, property used for earning income by personal exertion, and primary means of transport are not available to satisfy a judgment debt.[63]

1. Mr Giurina argues that the Warrant may not be executed against the Estate's land because the Costs Orders were not made against the Estate, and the Estate was not a party to the proceeding in which the Costs Orders were made. Mr Giurina argues that in order for the Warrant to be executed against the proceeds of the Property, the Court would need to re-open the Costs Orders and make them against the Estate. I disagree. The relevant enquiry is not to ensure the judgment debtor and the legal title holder are one in the same. Rather, the question is whether the judgment debtor has an interest in the land within the broad definition provided in s 208 of the Property Law Act, no matter who holds the legal title. Consistent with this, s 23 of the Sheriff Act expressly provides that recoverable property includes property of the judgment debtor 'regardless of who has possession of it'.

D.3 Are a beneficiary's rights to a deceased estate available to meet a judgment debt?

D.3.1 What is the nature of a beneficiary's rights to a deceased estate?

1. As Mr Giurina's rights to the Property or the proceeds of its sale derive from his entitlements under the deceased's will, it is necessary to first consider the nature of a beneficiary's rights under a will.
2. The relevant principles were not in dispute. A beneficiary of an unadministered estate does not have any legal or equitable interest in the estate's assets. Rather they have a right to have the estate duly administered, and an expectation that the bequeathed assets will pass to them upon completion of the administration, subject to the assets being realized to meet any outstanding liabilities of the estate and to defray the cost of administration.[64]
3. Administration of an estate is the performance by the executor of their role to execute the instructions of the testator as to the disposition of their estate. This limited function comes to an end vis-à-vis each asset of the estate, once that asset has been administered in accordance with the testator's directions.[65] The end of executorial duties is ordinarily evidenced by the assent (which may be express or implied) or distribution of the estate to the beneficiaries, at which time a beneficiary's interest in the estate assets is vested.[66]
4. Upon completion of the administration of an estate, the beneficiary acquires an equitable interest in the assets due to them under a will, rather than a mere chose in action against the executors to ensure the due administration of the estate.[67] In Jacobs' Law of Trusts in Australia, the learned authors summarise the position as follows:

An executor who has performed all executorial functions may become a trustee by merely continuing to hold property. When the executor becomes a trustee of ascertained property, the beneficiaries then become owners of equitable interests in that property.[68]

1. I address the authorities that consider when the administration of an estate will be complete in Part E.1 below.

D.3.2 Is the right to due administration available to meet a judgment debt?

1. The right of a beneficiary under a will to due administration of the deceased estate vests in their bankruptcy trustee, together with any fruits that may fall to the bankrupt as a consequence of due administration.[69] The plaintiffs submitted, without reference to authority, that the converse of s 42 of the Supreme Court Act applies, such that all property that is divisible amongst a bankrupt's creditors is available to be seized and sold to satisfy a judgment debt, and that therefore, a beneficiary's right to due administration of an estate is an asset available to the Sheriff under a warrant for seizure and sale.[70]
2. I accept that the intention of s 42 of the Supreme Court Act is to ensure consistency between the assets available to a bankrupt's creditors and those available to judgment creditors. This is supported by:

(a) the second reading speech when the provision was first enacted as s 63C of the Supreme Court Act 1958 (Vic), where it was said that the purpose of the provision was to provide consistency between the assets available to judgment creditors and those available to the creditors of a bankrupt; [71] and

(b) the explanatory memorandum for the Supreme Court Act, which states that s 42 'provides that only property divisible among creditors in bankruptcy may be seized to satisfy a judgment'.[72]

1. However, in my view, this is subject to the assets being 'recoverable property' that the Sheriff has power to seize or take possession, as provided for in s 23 of the Sheriff Act. For the reasons that follow, I do not accept that a beneficiary's right to due administration of an estate is recoverable property that may be lawfully seized under a warrant of seizure and sale.
2. A person's right to due administration of a deceased estate is a chose in action. The exercise of a beneficiary's chose in action involves commencing proceedings against an executor to enforce the due administration of the estate. Even if that litigation is successful, it may not result in the judgment debtor obtaining title to any real or personal property gifted to them under the will. This is because due administration may see the entire estate being used to meet a testator's debts or the costs of administration.[73]
3. The Sheriff Act does not give the Sheriff the power to commence litigation to recover property of a judgment debtor when executing a warrant of seizure and sale, and the plaintiffs did not take me to any authority which supports the proposition that the Sheriff has that power. Rather, the powers of the Sheriff are all aligned with the power to seize and take possession of recoverable property, such as the power to enter and search premises for recoverable property, the power to take possession of real property, and the power to seize, sell and otherwise deal with recoverable property.[74] Consistent with this, the Court has expressed doubt as to whether a sheriff may seize and sell a judgment debtor's right, title and interest in an action to satisfy an execution.[75]
4. I therefore do not accept that a judgment debtor's right of due administration of a deceased estate is recoverable property against which the Sheriff may execute a warrant of seizure and sale. It may be that a court could appoint a receiver over a judgment debtor's chose in action for due administration of an estate, and property that the judgment debtor receives thereafter, as a form of equitable execution.[76] However, as this is not the relief sought by the plaintiffs in this proceeding, it is not necessary for me to consider this issue further.

D.3.3 Is property gifted under a will available to meet a judgment debt?

1. The plaintiffs submit that the Sheriff can sell the judgment debtor's interest in real estate gifted under a will in execution of a warrant of seizure and sale. In support of this argument, the plaintiffs rely upon Re Cox; Perpetual Trustee Co Ltd v Cox ('Re Cox')[77] and Trustees Executors v Butler ('Butler'),[78] which consider the assets available in execution of a writ of fieri facias (or fi fa), the predecessor to a warrant of seizure and sale.
2. I accept that the Sheriff may sell a judgment debtor's equitable interest in land forming part of a deceased estate in execution of a warrant of seizure and sale. This is provided for in s 208(1) of the Property Law Act, and facilitated by s 208(2).[79] Thus, a property held by a trustee on a fixed trust for a beneficiary would be available to meet a judgment debt. However, as I have already addressed, whether a beneficiary under a will has an equitable interest in property passing to them from a deceased's estate turns on whether or not the estate has been administered. In both Re Cox and Butler, the judgment debtor had an equitable interest in the land. This was because the estates had been administered, such that the land in question was held on trust for the judgment debtor. Accordingly, I do not accept that Re Cox and Butler support the plaintiff's submission that a debtor's interest in property due to them under an unadministered estate is available to meet judgment debts.
3. The plaintiffs' counsel also submitted that where the judgment debtor is also the residuary beneficiary under a will, the Sheriff may seize and sell property held by the judgment debtor in their capacity as executor, citing Nugent v Gifford[80] and Graham v Drummond_._[81] However, neither of these cases stand for the propositions advanced by the plaintiffs. Rather, they address the principle that where an executor who is also residuary legatee sells or mortgages an asset of the testator for valuable consideration to a person who has no notice of the existence of unsatisfied debts of the testator, or of any ground which rendered it improper for the executor to deal with the testator's asset, the transfer of the asset to that person is valid as against any unsatisfied creditor of the testator. In that situation, the creditor of a testator only has a personal demand against the executor for the debt owed, and is not entitled to a lien on the testator's assets.[82] The Court in Graham v Drummond describes this principle as 'settled law', citing, amongst other cases, Nugent v Gifford.[83] Neither Nugent v Gifford nor Graham v Drummond address the rights of a sheriff to seize estate property held by a judgment debtor who is both executor and sole beneficiary of the estate.

1. The consequence of the analysis in Part D above is that:

(a) if the proceeds of sale of the Property are Mr Giurina's property, either at law or in equity, then they are available to meet Mr Giurina's judgment debts owed to the plaintiffs; and

(b) whether the proceeds of sale of the Property are Mr Giurina's property is dependent upon whether the Estate or at least the Property, has been administered, such that the proceeds of sale are no longer an asset of the Estate.

1. Whilst the parties made submissions to the Court as to whether the administration of the Estate was complete, neither party took the Court to authorities which consider this question, other than the authorities of this Court addressing the status of the administration of this Estate. Consequently, the following summary of the legal principles to be applied is a result of the Court's own research.
2. The failure of the parties to make submissions as to the legal principles to be applied came to my attention after the conclusion of trial and I gave consideration as to whether I should invite the parties to make further submissions. However, the parties each made submissions to the Court which reflect the applicable principles set out below. Both sides made submissions as to the length of the administration, whether the Estate's debts, testamentary expenses and funeral expenses had been paid, and as to the remaining tasks to be undertaken to finalise the administration of the Estate. In light of this, and the manner in which this proceeding was conducted by the parties (details of which are addressed in this judgment), and where the trial took double the estimated trial length, I did not invite further submissions from the parties. This is because taking this course would have increased the costs expended by the parties, caused delay, and led to further use of the Court's limited resources in respect of a proceeding seeking to enforce Costs Orders taxed in the amount of $39,840.13. Given that the parties' submissions were consistent with the principles set out below, calling for further submissions would have been disproportionate, and would not facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Accordingly, having regard to the Court's obligation pursuant to s 8 of the Civil Procedure Act to give effect to the overarching purpose, I did not invite further submissions from the parties.
3. As referred to in Part D.3.1 above, an estate will be administered when the executorial duties have bee[84]completed.84 An executor's duties chiefly involves getting in the assets of the testator, paying the deceased's debts, paying testamentary and funeral expenses, paying the legacies given by the will, distributing the assets in accordance with the will and produci[85] accounts.85
4. Whether an estate has been administered is a question of fact to be determined taking into account all the circumstances.[86] Relevant factors include:

(a) the length of time since the death of the testator, and/or a long lapse of time after the completion of the executor's normal functions, that is, the getting in of assets and payment of all debts, funeral and testamentary expenses associated with the estate.[87] For example, where there has been a protracted holding of estate property available for distribution with the consent of the person entitled to it under the will, the court will find that the estate has been administered, and that the executor is holding the property as trustee with the consent of all the beneficiaries;[88]

(b) the purpose for which the executor holds the remaining assets of the estate. If they are held for the purpose of administering the estate, that is, to sell the assets to pay the debts of the estate, then the administration of the estate will clearly be continuing.[89] If there are no significant debts of the estate, there may be insufficient evidence to justify any assumption that that the asset held by the executor is for the purpose of administering the estate;[90]

(c) the executor's subjective understanding as to whether all duties have been undertaken or whether there has been assent is relevant, but not decisive;[91] and

(d) whether final accounts in respect of the estate have been prepared will also be relevant, but not decisive.[92]

1. Most of the authorities that consider whether a deceased estate or assets within it have been administered do so in the context of needing to decide whether a particular asset is held by a person in their capacity as executor, or alternatively as trustee, as the distinctions between executors and trustees have particular significance in the context of deceased estates.[93] This is often in circumstances where the will provides for a testamentary trust of which the executor is the trustee, such that distribution is not necessary in order for the executor to translate from the role of executor to trustee. However, the absence of a specific reference to a trust in the will does not deny the scope for trusteeship.[94] Once administration of the estate is complete, the executor holds the assets as trustees for the beneficiaries. The beneficiaries may then obtain an order for the assets to be transferred to them.[95]
2. The precise turning point as to whether executorial duties have been performed may need to be considered in relation to each specific item of property in an estate.[96] This is because an executor may become the trustee of different assets of the estate at different times, and so can act in both capacities at the same time in relation to different property.[97]
3. It is not necessary for all testamentary and administration expenses and debts to be paid before an executor may hold specific assets as trustee. In Porteous v Rinehart, White J held that in relation to particular assets, namely shares in a company left to the executors as trustees on certain trusts, the executors were probably trustees despite it being likely that not all testamentary and administration expenses and debts had been paid. [98]
4. It has been held to be arguable that an executor may assent to holding the position of trustee rather than executor in respect of specific assets notwithstanding the administration is incomplete, particularly in circumstances where the residuary estate is sufficient to pay all debts, funeral expenses and testamentary expenses, such that the property the subject of specific gifts can be distributed.[99]
5. In Giurina v Sheriff for the State of Victoria,[100] the Court of Appeal considered whether the administration of the Estate the subject of this proceeding was complete. In doing so, the Court of Appeal found that distribution of an estate's assets is required before the administration of the estate will be complete, and that where real property is bequeathed, formal distribution of real property by transferring legal title is required. The Court of Appeal said:

[i]n our opinion the estate cannot be regarded as fully administered until the assets of the estate have been distributed in accordance with the will. Insofar as money or chattels are concerned, distribution may be informal. But in so far as real property is concerned, attention must be paid to the registered title. Where real property is devised to a specific beneficiary, the administration of the estate cannot be regarded as complete for so long as the legal title remains registered in the name of the deceased person and has not passed to the beneficiary.[101]

1. The Court of Appeal reiterated this at paragraph 57, saying:

But again, the question in this case is whether the executor has performed all his or her executorial functions. As we have explained above, in our view an executor cannot be said to have performed all his or her executorial functions if real property is devised to a specific beneficiary but legal title to the real property has not been conveyed to that beneficiary.

1. The authority cited by the Court of Appeal in relation to the need for distribution is the High Court's decision of Easterbrook v Young,[102] where Barwick CJ, Mason and Murphy JJ describe actual distribution of an estate as 'its removal from the hands or name of the personal representative and its placement in the hands or name of the testamentary or statutory beneficiary'.[103] That is, the Court of Appeal refers to Easterbrook v Young for its definition of 'actual distribution', rather than for the proposition that distribution is required in order for an estate to be fully administered.
2. Easterbrook v Young was an appeal from the New South Wales Supreme Court which had found that the estate had been administered. The Court reached this conclusion on the basis that as there was nothing left to be done in the administration of the estate, other than the transfer of the title of real estate from the personal representative to the beneficiaries entitled to it.[104] All debts, duties, administration expenses and other liabilities of the estate had been paid 14 years earlier.[105] The Court found that as such, the personal representative held the real estate as trustees for the beneficiaries entitled to it out of the estate, and did not hold the property in their capacity as administrator of the estate.[106] The Court concluded that therefore the estate had been finally distributed, and an extension of time could not be granted for a family maintenance application.[107]
3. The High Court did not cavil with the trial judge's conclusion that the estate had been administered, but found that the failure to transfer title to the beneficiaries meant that the estate had not been finally distributed, such that an application for family maintenance was not out of time.[108] In doing so, the High Court accepted as 'settled law' that upon completion of executorial duties, the executors cease to be executors and hold the property as trustees for the beneficiaries.[109] However, the High Court found that this was not relevant to the question of whether the estate had been distributed within the meaning of the testator's family maintenance legislation.[110]
4. In light of this, it might be that the proposition that distribution of an estate is required in order to complete its administration is expressed too broadly in Giurina v Sheriff for the State of Victoria.[111] This is because it fails to draw a distinction between the administration of an estate as compared to its distribution, at least when considered from the perspective of the beneficiary's rights in the estate's assets, and whether they have an equitable interest in the estate property as a consequence of an executor administering the estate, but failing to distribute the estate assets to the beneficiaries entitled to them under the will.
5. The distinction between administration and distribution may also be relevant in circumstances where the executor is also the sole beneficiary of an estate, or a particular asset within it. This is because, once executorial duties have been completed, the executor could not hold any undistributed assets in their capacity as trustee, as a person may not be the trustee of a trust of which they are also the sole beneficiary.[112] In such circumstances, there is no distinction between the legal and equitable interest in the trust asset, rather the person holds a single, absolute interest in the asset, and they will no longer hold it in their capacity as executor.[113]
6. In those circumstances, it follows that where distribution of the asset may be effected informally (such as distribution of money and chattels), the executor-beneficiary will have full legal and equitable title to that asset upon completion of the administration of the estate, or the asset, as the case may be. Assent to themselves of the assets as beneficiary will be implied from the conduct of the executor in finalising the administration of the estate.[114]
7. However, as the Court of Appeal said in Giurina v Sheriff for the State of Victoria, where formal steps are required for the distribution of legal title to property from the deceased to the sole executor-beneficiary, such as in the case of Transfer of Land Act real estate, distribution is required in order to finalise the administration of that real estate.[115]

1. In order to determine whether the Estate or the Property has been administered, it is necessary to have regard to the terms of the will and evidence of the Estate's assets, the findings of this Court, the trial division and the Court of Appeal as to whether the Estate has been administered, and the evidence of the executorial duties undertaken with respect to the Estate.

1. The deceased died on 10 February 2002, and was buried on 14 February 2002.[116] She left a will dated 26 March 1995.[117]
2. The following arises from the deceased's will, the grant of probate and the inventory of the deceased's assets as at 23 August 2002 (being the date of Mr Giurina's executor's affidavit):

(a) Mr Giurina is the sole executor and trustee of the Estate,[118] and was granted probate on 13 September 2002;[119]

(b) as at 23 August 2002, the assets of the deceased's Estate were limited to:

(i) the Property, then valued by Mr Giurina in the amount of $160,000;

(ii) $8,352.45 cash; and

(iii) furniture and personal effects valued at $1,000;[120]

(c) Mr Giurina alone is gifted the Property under the will by way of specific devise, together with all chattels therein. The beneficiaries of the Estate's residue have no interest in the Property, as the gift to Mr Giurina has not failed or lapsed by reason of him pre-deceasing the testator;[121]

(d) the residuary estate comprised $8,352.45 cash and any of the $1,000 worth of furniture and personal effects that were not chattels in the Property. Irma Locher and Ida Consul are entitled to this residuary estate in equal shares, after the payment of the debts of the deceased, funeral and testamentary expenses, and other taxes;[122] and

(e) the deceased had no liabilities as at 23 August 2002.[123]

E.2.2 Other proceedings concerning the Property and the Estate

1. As summarised above Mr Giurina has lodged caveats, and instituted various proceedings and applications seeking to stop the sale of the Property by the Sheriff. In each of these applications, Mr Giurina claimed that he owns the Property, on the basis that it is no longer an asset of the deceased's Estate, as the Estate has been administered.
2. I will summarise these proceedings as briefly as possible, insofar as they are relevant to the questions to be decided in this proceeding.
3. The following orders have been made with respect to the Property in the context of the Council's enforcement of costs orders made against Mr Giurina in his capacity as executor of the Estate:

(a) On 24 May 2022, Matthews AsJ (as her Honour then was) declared that Mr Giurina in his capacity as executor of the Estate is the proprietor of the Property and that the Property is affected by the Council's warrants. Those declarations have not been appealed.[124]

(b) On 9 March 2023, Matthews AsJ (as her Honour then was) made orders for the removal of two caveats lodged by Mr Giurina against dealings in the Property, and restrained Mr Giurina from lodging further caveats without leave of the Court.[125] The Court of Appeal refused to grant Mr Giurina leave to appeal Matthews AsJ's orders.[126]

(c) On 26 February 2024, Forbes J dismissed two summonses filed by Mr Giurina in separate proceedings seeking to prevent the sale of the Property through an injunction against the Sheriff, and seeking leave to lodge further caveats against dealings in the Property.[127] In a judgment delivered after the trial of this proceeding had concluded, the Court of Appeal refused to grant Mr Giurina leave to appeal Forbes J's orders.[128]

1. In each of these decisions, the Court has considered arguments as to whether the Estate, or at least the Property, has been administered.
2. In the caveat removal proceeding, Matthews AsJ:

(a) did not accept that Mr Giurina had a prima facie case for an interest in the Property arising from his conduct in 2003 as executor assenting and distributing the Property to himself as the beneficiary under the will (either by way of actual or implied assent);[129]

(b) noted that the position argued by Mr Giurina was contrary to that which he maintained in the warrants application, where he submitted that he had no interest in the property either as executor or beneficiary, but only had a right as a beneficiary to have the estate administered;[130]

(c) did not accept that the Property was no longer an asset of the Estate and found that the Property would be available to satisfy the Estate's debts where the residuary is insufficient;[131] and

(d) noted that Mr Giurina, as a beneficiary of an unadministered estate, lacked standing to lodge a caveat over estate property.[132] In reaching this conclusion, her Honour referred to G.E. Dal Pont's, Law of Succession, which addresses the authorities referred to above at Part D.3 as to the rights of a beneficiary in an estate under adm[133]stration.133

1. On the application for leave to appeal Matthews AsJ's decision, the Court of Appeal noted:

(a) that even if at an earlier point in time the Estate had no debts, that the debts subsequently incurred (such as the Council's costs orders against Mr Giurina as executor) were able to be paid out of the proceeds of sale of the property pursuant to s 39A of the Administration and Probate Act 1958 (Vic) ('Administration and Probate Act');[134] and

(b) that as executor, Mr Giurina is personally liable for the Council's costs orders, but with a right of reimbursement from the Estate.[135]

1. In Forbes J's ruling, her Honour did not accept that Mr Giurina's arguments gave rise to a prima facie case that the administration of the Estate had been completed in respect of the Property. In doing so, her Honour noted that the following facts presented difficulties for Mr Giurina's argument that the administration of the Property had been completed and had been distributed to him via an assent:[136]

(a) Mr Giurina's failure to transfer the title of the Property from the deceased to himself as her executor, as provided for in s 49(1) of the Transfer of Land Act;[137]

(b) Mr Giurina's failure to comply with s 41(10) of the Administration and Probate Act, which requires assent to land be done in the form prescribed under the Transfer of Land Act;[138] and

(c) Mr Giurina's conduct during the litigation concerning the Property in his capacity as executor, in which he made representations disavowing any personal interest as beneficiary or otherwise in the Property after the alleged assent, including submissions to Matthews AsJ that he had no interest in the Property either as executor or beneficiary, but only had a right as a beneficiary to have the Estate administered.[139]

While it is true that the question of whether or not the estate has been fully administered has not been specifically determined, the question of whether the property remains property of the estate and available to meet the costs orders has been squarely addressed by Matthews AsJ and the Court of Appeal.[140]

1. In the Court of Appeal's decision refusing leave to appeal the order of Forbes J, the Court said:

(a) 'the underlying basis for all Mr Giurina's claims - that the Estate has been fully administered, at least in relation to the Property - is simply unarguable**'**;[141]

(b) 'the [P]roperty remains property of the estate; it is vested in Mr Giurina as executor of the estate; and it is available to satisfy the debts of the estate, including the costs orders';[142]

(c) that administration of real property requires conveyance of the legal title to the beneficiary, and executorial duties will not have been completed until this is done;[143] and

(d) it agreed with the finding of the Court of Appeal in the appeal of Matthews AsJ's decision that even if at some point, the Estate had no debts, the subsequently incurred debts, in the form of the costs orders in favour of the Council, are able to be paid from the proceeds of sale of the Property.[144]

1. In this proceeding, Mr Giurina contends that the Estate remains in administration, such that the Property (or the proceeds of its sale) is property of the Estate, such that the Costs Orders may not be executed against those proceeds.[145]
2. Mr Giurina gives the following evidence as to the administration of the Estate in the affidavit evidence filed in this proceeding:

(a) in his affidavit filed on 23 August 2023, Mr Giurina deposes 'The Estate of the late Carolina Nacinovich remains in administration', but provides no further detail as to why that is the case;[146] and

(b) in his affidavit filed on 25 September 2023, Mr Giurina:

(i) denies that he has failed or refused to administer the Estate, and says that there have been no complaints from the residual beneficiaries or from anyone else as to how the Estate has been administered;[147]

(ii) says that 'there have been complex matters arising from potential fraud committed on Ms Nacinovich by third parties which has required various investigations';[148] and

(iii) draws the distinction between the ability of the Council to execute the warrants as against the Property in circumstances where the underlying costs order was against Mr Giurina in his capacity as executor, and the Costs Orders in favour of the plaintiffs which are against him personally in respect of proceedings to which the Estate was not party.[149]

1. Consistent with his position in this proceeding that he does not have an interest in the Property, when the Sheriff sought to execute the warrant, Mr Giurina did not inform the Sheriff that he had an interest in the Property.[150] Similarly, Mr Giurina admits that he did not disclose to the Court that he had any interest in the Property when he made applications to the Court to waive filing fees.[151]
2. Mr Giurina's position in the proceeding before Forbes J was entirely to the contrary. In that proceeding, Mr Giurina gave evidence that he owned the Property. He said that the Estate had been administered, other than in respect of the suspected fraud on the deceased.[152] He said that the Estate did not have any liabilities at the time of the grant of probate, and that all debts, funeral and testamentary expenses were paid from the residue by 11 October 2003.[153] Mr Giurina said that since that date, he has paid the costs and outgoings of the Property personally, and attended to the upkeep and maintenance of the Property.[154] He said that he believed that the Estate is 'simple', with the major asset being the Property, and that by 11 October 2023:

(a) there was nothing further that needed to be done in relation to the administration of the Property;

(b) he no longer performed any functions in relation to the Property in his role as Executor; and

(c) the Property had been finally distributed to him.[155]

1. Mr Giurina reiterated this evidence under cross-examination in this proceeding, saying:

[M]y belief at the time because around about that time it was a situation where I had finished off paying the funeral testamentary expenses and so forth. And so I was just holding the property, and my assumption was that that was it. There need not have been any further matters done of an administrative level in relation to the property.[156]

1. During re-examination, Mr Giurina confirmed that he used the Estate's funds in the ANZ bank account to pay for funeral and testamentary expenses, and that these funds had been exhausted.[157]
2. During cross-examination, the plaintiffs' counsel put to Mr Giurina the evidence he gave in the proceeding before Forbes J, and questioned him about the inconsistency between this evidence and his position in this proceeding that the Estate remains unadministered. Mr Giurina explained that 'external factors' had indicated to him that his belief that the Estate had been fully administered was incorrect. The following exchange took place:

MR GIRUINA: It was my belief that the administration was complete, that was my belief.

[PLAINTIFF'S COUNSEL]: So you have changed your belief, is that your evidence?

MR GIRUINA: No, I haven't changed my belief. But external factors have now indicated that my belief was wrong...[158]

1. When pressed on what 'external factors' had arisen which led to Mr Giurina changing his belief that the administration of the Estate had not in fact been completed. Mr Giurina said:

All these decisions by Forbes J, the Court of Appeal and Associate Justice Matthews.[159]

1. That is, Mr Giurina's evidence is that he still believes that the administration is complete (other than in respect of the fraud), but he accepts the decisions of the Court that the administration of the Property was not complete.
2. In relation to why he remains executor, Mr Giurina said the following in his evidence in the proceeding before Forbes J:

I have retained the office of Executor to pursue certain matters involving possible fraud on Ms Nacinovich which in my belief could result in some monies being recouped to the benefit of residuary beneficiaries. These matters arose around the time I became Executor and Probate was granted when I discovered that certain sums of monies which I believed at the time Ms Nacinovich had to her name were missing and I reported the matter to Corio police.[160]

1. In cross-examination in this proceeding, Mr Giurina described that the possible fraud was concerned with a person depositing cheques that were made out to the deceased into their own account.[161] Mr Giurina said that he discovered the possible fraud in 2002,[162] and described the fraud as 'only a suspicion' on his part.[163] Indeed, Mr Giurina initially refused to name the suspect, as 'it's just a suspicion it's not concrete'.[164]
2. When pressed by the plaintiffs' counsel on what steps he had taken to investigate the possible fraud, Mr Giurina was unable to point the Court to any steps he had taken to investigate the possible fraud, other than a complaint made to the police in 2002, and 'negotiations' with the Commonwealth Bank regarding the deposit of the cheques.[165] Mr Giurina accepted that he had not taken any action in relation to the suspected fraud, and said that the suspect was overseas and that he is endeavouring to find out their whereabouts.[166]

1. Mr Giurina identified two matters he says demonstrate that the Estate remains under administration. First, Mr Giurina says that this is the effect of the decisions of Matthews AsJ, Forbes J and the Court of Appeal identified above which he says have already determined this issue. In this regard, he points to the appeal book index for the Matthews AsJ Appeal to identify that in each of these proceedings, the Court had regard to the same evidence.[167] Secondly, Mr Giurina says the administration of the Estate will not be complete until such time as he pursues investigation of the 'suspected fraud' on the testator.

E.3.1 Has the Court already determined this question?

1. I will first address whether the findings of Matthews AsJ, Forbes J and the Court of Appeal, to the effect that the Estate remains under administration, have finally determined this question.
2. The conclusions reached by Matthews AsJ, the Court of Appeal and Forbes J regarding the status of the administration of the Estate were, inter alia, based on the factual finding that Mr Giurina's executorial duties with respect to the Property had not been completed. This is because the Property remained registered in the deceased's name, formal transfer of the title to Mr Giurina in his capacity as executor had not occurred as required by s 49(1) of the Transfer of Land Act, and nor had transfer of the Property to Mr Giurina as beneficiary under the will been effected in accordance with s 41(10) of the Administration and Probate Act and the associated requirements under the Transfer of Land Act.[168]
3. Since the decisions of Matthews AsJ, Forbes J and the two decisions of the Court of Appeal have been handed down, the Property has been sold by the Sheriff.[169] The Sheriff must now distribute the proceeds of sale in accordance with Part IV of the Sheriff Act. That is, the Sheriff will apply the proceeds first to cover the Sheriff's costs and taxes, and then to amounts owed to judgment creditors of the registered proprietor. The Sheriff will then pay the balance to the judgment debtor.[170] In this case, given the Court has declared that Mr Giurina as executor is the proprietor of the Property, the judgment debtor is Mr Giurina in his capacity as executor of the Estate.[171]
4. In my view, Mr Giurina's reliance upon the decisions of Matthews AsJ, Forbes J and the Court of Appeal as evidence that the Estate remains under administration is misplaced. None of these decisions considered whether the Estate will have been administered upon realisation of the Property and payment of the costs debts Mr Giurina has incurred in his capacity as executor of the Estate. Each of these decisions found that in circumstances where the Property needed to be realised in order to pay the costs orders, administration of the Estate had not been completed, and Mr Giurina did not have an interest in the Property as the beneficiary of it under the will.
5. Whether an estate, or an asset within it, has been administered is a question of fact, the answer to which will be different at different points in time. Self-evidently, the sale of the last remaining Estate asset by the Sheriff for the purpose of enforcing costs orders made against the Estate's executor, requires the issue as to whether the Estate remains under administration to be reconsidered. This is a significant change to the affairs of the Estate. It is necessary to consider whether, in light of this, the Estate, or at least the Property, is now administered.
6. For these reasons, the findings of Matthews AsJ, Forbes J and the Court of Appeal did not finally determine whether the Estate has now been administered.
7. Rather, the question is whether the Estate, or the Property remains in administration after the Sheriff has sold the Property and executed the warrants in respect of the debts incurred by Mr Giurina in his capacity as executor. Or put another way, when the Sheriff pays the proceeds of sale of the Property to Mr Giurina, is Mr Giurina receiving that sum in his capacity as executor, or alternatively, is he receiving that sum in his personal capacity?

E.3.2 Is the administration now complete?

1. Over 22 years has passed since the grant of probate on 13 September 2002, at which time the testator had no debts or liabilities.[172] Mr Giurina's sworn evidence is that he had paid all debts, funeral and testamentary expenses by the time that probate was granted.[173] He says that he paid these expenses out of the Estate's cash by October 2003,[174] and in doing so, exhausted the residuary assets of the Estate.[175]
2. Thus, as at October 2003, there being no debts or other expenses of the Estate to be satisfied, on Mr Giurina's evidence, the only things that he needed to do to finalise the administration of the Estate were:

(a) distribute the Property to himself as the specific beneficiary by transferring the Property's title into his own name; and

(b) investigate whether the suspected fraud on the Estate to see whether this was an asset that could be got in for the benefit of the residuary beneficiaries.[176]

1. Mr Giurina says that he became aware of the possible fraud 'around the time I became Executor and Probate was granted when I discovered that certain sums of monies which I believed at the time Ms Nacinovich had to her name were missing and I reported the matter to Corio police'.[177] Mr Giurina admits that the only step taken with respect to this suspected fraud is a report to the Corio police in 2002 and 'negotiations' with the Commonwealth Bank regarding the deposit of the cheques.[178] Mr Giurina describes this fraud as 'only a suspicion'.[179] No evidence of the possible fraud has been adduced.
2. Since August or September 2019, Mr Giurina in his capacity as executor has been involved in proceedings with the Council concerning the Property, and other proceedings seeking to prevent the sale of the Property. These proceedings are conveniently summarised by the Court of Appeal in Giurina v Sheriff for the State of Victoria at paragraphs 9 to 22, which summary I adopt, but will not repeat.[180] In the course of these proceedings, costs orders have been made against Mr Giurina in his capacity as executor of the Estate.
3. Other than disputes with the Council concerning the Property, there is no evidence of any other steps taken by Mr Giurina in his capacity as executor since October 2003. Mr Giurina says that he has done nothing with respect to the Property,[181] and the last step taken in respect of the possible fraud was the police report in 2002.[182] There is also no evidence of other Estate debts, other than the costs orders made against Mr Giurina in his capacity as executor of the Estate.
4. The Sheriff's duties in respect of the proceeds of the Property under the Sheriff Act are clear. Pursuant to Part IV of the Sheriff Act, the Sheriff will apply the proceeds of sale of the Property, first to cover the Sheriff's costs and taxes, and then to the judgment creditors set out in the relevant warrants. Where the Sheriff is executing more than one warrant in respect of one judgment debtor, the proceeds must be applied in order of receipt by the Sheriff of the warrants to which those proceeds relate.[183] Here, the warrants to which the proceeds relate will be warrants in respect of costs judgments owed by Mr Giurina in his capacity as executor of the Estate. If there are any proceeds of sale after the Sheriff has complied with their payment obligations as provided for in the Sheriff Act, the Sheriff will pay the balance to the judgment debtor, Mr Giurina in his capacity as executor.
5. The question is therefore, whether at this point, there is anything left for Mr Giurina to do with respect to the administration of the Estate, or alternatively, administration of the Property? To answer this question, it is necessary to consider whether there are any remaining executorial duties that need to be undertaken, such that retention of the proceeds of sale in the Estate would be for the purpose of administering the Estate.[184]
6. An executor's duty is to get in the assets of the testator. Mr Giurina submits that there are outstanding tasks in this regarding with respect to the suspected fraud, which may result in assets being recovered for the residual beneficiaries.
7. Whilst Mr Giurina's subjective view is that there are further executorial duties to be undertaken, this is not determinative.[185] The evidence shows otherwise.
8. I do not accept the administration of the Estate is incomplete by reason of the need to investigate a possible fraud upon the deceased. In short, nothing has been pursued in this regard despite the 22 years that have passed since the possible fraud came to Mr Giurina's attention. Certainly, there is no evidence that the police have instituted criminal proceedings as a consequence of the report made to them in 2002. The evidence of Mr Giurina that there is a suspected fraud that remains to be investigated raises no higher than an unsubstantiated assertion. When Mr Giurina raised the fraud in proceedings before Matthews AsJ, her Honour observed that the possible fraud allegations were 'vague and unpursued'.[186] I agree with her Honour's observations.
9. Mr Giurina submits that the length of time it has taken to administer the Estate is 'of no consequence'.[187] He submits that the Administration and Probate Act does not provide a time limit upon how long an executor can take to administer an estate, and that the length of time required for administration will depend upon the circumstances of the case, citing Re Tankard.[188] I do not accept that the length of the administration is of no consequence. The authorities that consider administration of estates make clear that both the length of time since the death of the testator, and a long lapse of time since the normal executorial duties have been completed, are relevant to determining whether an Estate has been administered.[189] Mr Giurina's evidence is that other than investigation of the fraud and formal distribution of the Property, all executorial duties were completed by October 2003.[190] In my view, the length of time that has passed is a relevant factor which indicates that the suspected fraud is not a potential asset of the Estate. There is no evidence of any circumstance relating to the asserted suspected fraud that indicates that it requires 22 years to be investigated.
10. I am therefore satisfied that Mr Giurina has completed his executorial duties to get in the assets of the Estate.
11. An executor is duty bound to pay the deceased debts, and testamentary and funeral expenses. Mr Giurina's evidence is that this was completed by October 2003.[191] Mr Giurina has not identified any Estate debts that are required to be paid out of the proceeds of sale of the Property.
12. Mr Giurina has incurred debts in his capacity as executor of the Estate in the form of costs orders. These debts will be paid by the Sheriff out of the proceeds of sale of the Property to the extent that they are the subject of warrants received by the Sheriff. In doing so, the Sheriff will be undertaking the duties of executor of the Estate by realising the Property in order to pay the executor's debts. The Sheriff is, in effect, administering the Estate in circumstances where Mr Giurina has failed to do so.
13. It may be that Mr Giurina has other debts that he has incurred in his capacity as executor that are not the subject of a warrant, and therefore will not be paid by the Sheriff out of the proceeds of sale of the Property. In circumstances where Mr Giurina is the sole executor and beneficiary, and the only person who has an interest in the remaining Estate assets, it is not necessary for these amounts to be paid by Mr Giurina in order to finalise the administration of the Estate. As explained by the Court of Appeal, these are debts that Mr Giurina has incurred personally, in respect of which he has a right of indemnity from the Estate's assets.[192] Provided that all other executorial duties have been undertaken, there is no need to maintain a fund of proceeds from the Property sale solely for the purpose of Mr Giurina indemnifying himself in respect of debts that he has incurred.
14. It also may be that there are ongoing proceedings brought by Mr Giurina in connection with the Property which he instituted in his capacity as executor. Before me there was evidence of a damages claim against the Council relating to the Property which was fixed for trial on 21 October 2024 on an estimate of 2-3 sitting days.[193] However, in circumstances where the claim relates to the Property, any damages recouped from those proceedings will not be available to the residuary beneficiaries. Rather they will be available to Mr Giurina, as the specific beneficiary of the Property under the will. Accordingly, I do not accept that the administration of the Estate is continuing by reason of this proceeding. Rather, this claim is, in truth, a claim by Mr Giurina in his personal capacity seeking damages that he may be entitled to as a consequence of his interest in the Property under the will. As Whelan JA said in the judicial review proceeding between Mr Giurina and the Council:

The property itself is, to all intents and purposes, Mr Giurina's property. It was left to him in the relevant will. He is the sole executor. When asked why the estate was still being administered after almost 20 years he gave an explanation that I found difficult to understand. He took considerable pains at the outset of the hearing to differentiate himself from the estate, even to the extent of referring to an agreement as to costs which he said he had made with himself in his capacity as executor.[194]

1. Accordingly, given that all the assets have been got in, and debts paid, all that is left in the administration of the Estate is to distribute the assets in accordance with the will. Mr Giurina's evidence is that the Estate does not have any residuary assets, as these were exhausted through payment of the testator's debts, and funeral and testamentary expenses.[195] Therefore, the only Estate asset that remains to be distributed is the proceeds of sale of the Property.
2. There being no Estate debts to be met from the proceeds, upon the Sheriff applying the proceeds in accordance with Part IV of the Sheriff Act, the administration of the Property will be complete.
3. This is because there will be nothing left for Mr Giurina to do in order to finalise the administration of the Property and the executorial duties in relation to it will have been completed. Through the Sheriff's sale, the Property will have been realised, and Mr Giurina's executor's debts will have been paid (to the extent that they are the subject of warrants received by the Sheriff). Unlike the Property, there are no formal requirements to be met under the Transfer of Land Act in order to distribute the proceeds of its sale. Rather, the Sheriff will simply transfer the proceeds to Mr Giurina.
4. Mr Giurina is the sole beneficiary entitled to the Property under the will. Therefore, receipt of the proceeds of its sale by him cannot be in a capacity as executor of the Estate, as there are no executorial duties left to complete. Further, it cannot be received by Mr Giurina as trustee of a trust of which he is the sole beneficiary.[196]
5. In my view, Mr Giurina will be entitled to receive the funds from the Sheriff in his own right, and he will be free to do with those funds as he pleases.
6. Further, it cannot be inferred that Mr Giurina has continued to hold the Property as executor for the purpose of administering the Estate, that is, for the purpose of selling it in order to pay the debts of the Estate.[197] Mr Giurina has had no intention of selling it for the purpose of meeting the debts of the Estate. Rather, he has taken steps to try to prevent the Property from being sold. This supports the conclusion that the proceeds of sale of the Property are not required to be held in the Estate for the purposes of its administration.
7. If I am wrong, and the administration of the Estate is ongoing with respect to the suspected fraud, it does not affect the administration and distribution of the proceeds of sale of the Property, after payment of the executor's debts by the Sheriff, to Mr Giurina as the person rightfully entitled to them under the will. Mr Giurina accepts that if a claim in respect of the asserted suspected fraud is an asset of the Estate, it will be for the benefit of the residuary beneficiaries. Thus, the realisation of the possible asset has no impact upon the Property and its due administration under the terms of the will. There is no evidence to suggest that the Property has remained in the Estate for the purpose of investigating the suspected fraud.

1. The consequence of my conclusion is that subject to the Sheriff distributing the proceeds of sale of the Property in accordance with Part IV of the Sheriff Act in execution of warrants for executor debts, the balance of the proceeds is Mr Giurina's property. It is therefore available to meet his personal judgment debts.

F Should the Court grant the relief sought?

1. The primary relief ultimately sought by the plaintiffs is a declaration in the following terms:

A declaration that the Proceeds are the property of Mr Giurina, and affected by the Costs Orders, for the purposes of executing the Warrant.

1. The plaintiffs define 'Proceeds' to mean the proceeds from the sale of the Property to be conducted by the Sheriff on behalf of the Council on a date to be fixed.
2. A second alternative declaration is sought in the following terms:

Alternatively, a declaration that the Sheriff may execute the Warrant as against the Proceeds as property of the Estate, in circumstances where the Property has remained registered to the deceased, despite the passage of over 20 years, and Mr Giurina is the sole executor of the Estate and the sole beneficiary of the Property under the terms of the Will, and, on his evidence before the Court, he has not performed any executorial acts since 2003 and has, since that time, paid all expenses in respect of the Property in his personal capacity.

1. Given that I have found that the proceeds are the property of Mr Giurina, it is not necessary for me to consider the alternative declaration sought by the plaintiffs.
2. The plaintiffs also seek the following ancillary order to assist with the implementation of the declaratory reliefs ought:

An order under rr 66.11 or 66.15 of the Rules, or in the Court's inherent jurisdiction, that the Sheriff pay the sum of $41,333.03 (plus interest to be calculated in accordance with the Penalty Interest Rates Act 1983) from the Proceeds directly to the Plaintiffs in satisfaction of the Costs Orders, and in execution of the Warrant, provided that such payment is in accordance with Part IV of the Sheriff Act 2009.

1. The sum of $41,333.03 is the quantum of the Costs Orders as taxed ($39,840.13), plus the amount due in in respect of professional fees and costs as set out in paragraph (b) of the Warrant ($1,492.90). Paragraph (c) of the Warrant provides that $19,538.04 in interest had accrued as at 1 November 2023 (the date of the Warrant).[198]

F.2 Does the Court have jurisdiction to grant the relief sought?

1. The plaintiffs submit that the Court has the power to grant the relief sought pursuant to its inherent jurisdiction to make orders in aid of enforcement, its statutory power to grant declaratory relief, and its inherent jurisdiction. The plaintiffs also rely upon the powers provided in r 66.11 to make orders for substituted performance, and r 66.15 to make orders in aid of execution of a warrant.

F.2.1 Inherent jurisdiction to make orders in aid of enforcement

1. The Court has wide inherent powers to ensure that justice is not denied to those who litigate before them.[199] The inherent jurisdiction can be invoked whenever necessary for the administration of justice.[200] It extends to the making of orders for the enforcement of a judgment of the Court,[201] whether as provided for in the Supreme Court Act and the Rules, or through its inherent equitable jurisdiction to enforce judgments. As Bryson J explained in DM & BP Wiskich Pty Ltd v Joseph Saadi:[202]

Before the Judicature reforms equitable remedies were from time to time given to enable judgments to be enforced in circumstances where the remedies available under the common law were inadequate. In the complex and technical history of the law relating to execution, a number of valuable interests could not be the subject of execution under common law process. Many of the difficulties were overcome by legislation ... However equitable execution continues to be possible, and while quite uncommon, from time to time orders are made appropriating funds in Court or otherwise under the control of the Court to the satisfaction of judgments without the intervention of any writ for levy of property or other formal execution process.[203]

1. In Ainsworth v Criminal Justice Commission,[204] the High Court stated the following in relation to the Court's inherent power to grant declaratory relief:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "it is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise". However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the court's declaration will produce no foreseeable consequences for the parties".[205]

1. In Bass v Permanent Trustee Co Ltd,[206] the High Court said:

The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy.[207]

1. Statutory power to grant declaratory relief is found is s 36 of the Supreme Court Act which provides that the Court may make binding declarations of right without granting consequential relief.[208]
2. Put succinctly by Ierodiaconou AsJ in Hughes v Brandt,[209] before exercising judicial discretion, the Court should be satisfied that:[210]

(a) there is a real legal controversy;

(b) the plaintiffs have a real interest in that controversy; and

(c) the controversy can be quelled by a declaration.

1. In Forster v Jododex Australia Pty Ltd,[211] Gibbs J stated that a plaintiff should not necessarily by refused declaratory relief because other relief is available in the same court.[212] The existence of an alternative remedy is not a bar to the making of a declaration, but a matter to be weighed by the court in the exercise of its discretion.[213]
2. As to the form of the declaration, a declaration must be clear and precise in its actual terms and the Court may, in its discretion, decline to make a declaration unless it can be precisely and clearly framed.[214] Any declaration made by the Court should reflect the final outcome of the case with certainty and precision.[215]
3. The plaintiffs argue that the criteria for granting declaratory relief are met. There is a clear controversy between the parties as to whether the proceeds of sale of the Property are Mr Giurina's property, and whether the Warrant may be executed against the proceeds of sale. The plaintiffs have a real interest in the controversy, and if it is determined in their favour, the Warrant will be able to be executed against the proceeds of sale of the Property, and the costs judgments in their favour may be satisfied. If the Court were to grant declaratory relief, it will quell the controversy between the parties and provide the Sheriff with guidance as to the manner in which the Warrant may be executed. I accept these submissions.
4. Mr Giurina argues that it would be inappropriate to grant declaratory relief because whether or not the Sheriff will sell the Property is in a state of flux, so as to make the declaratory relief hypothetical. In this regard, Mr Giurina raises the possibility of settlement of the dispute between him and the Council, noting that the damages proceeding between them is due to be mediated. He also says that a sale may be prevented by his next of kin lodging a caveat against dealing in the Property.
5. As I have said, the Property has now been sold by the Sheriff, so it seems that none of these things have come to pass, and as such, the declaratory relief sought is not hypothetical. A declaration will have practical significance to the parties, and addresses the real question as to the ownership of the proceeds of sale of the Property. Regardless, in my view, neither of Mr Giurina's arguments provide a basis for refusing to grant declaratory relief, as neither demonstrate that the declaratory relief is sought in respect of a hypothetical rather than a real question. Rather, the two situations postulated by Mr Giurina are themselves hypothetical.
6. At the time of trial, the Property was due to be sold by the Sheriff in execution of the Council's warrants, despite the numerous unsuccessful challenges brought by Mr Giurina. Even if there was a settlement of the damages claim brought by Mr Giurina against the Council, there is no certainty that the Property would not be sold by the Sheriff.
7. Mr Giurina claims that his next of kin may lodge caveats to stop the sale of the Property, as they have a contingent interest in the Property. Mr Giurina says that this arises because he may die before the Estate is administered, such that Mr Giurina's interest in the Estate will fall to his next of kin. In this regard, Mr Giurina relies upon Schmidt v 28 Myola Street Pty Ltd,[216] where Warren CJ notes that categories of caveatability are not closed, and that in appropriate circumstances, an equitable interest in land is capable of supporting a caveat even where that interest will not compel the registered proprietor to deliver a registrable instrument.[217]
8. However, no caveats have been lodged by Mr Giurina's next of kin, and it is difficult, if not impossible, to understand how they might have standing to do so. As noted by Matthews AsJ, beneficiaries of an unadministered estate do not have standing to lodge a caveat over estate property.[218] It is difficult to see then how potential beneficiaries of an estate of a person who is still living could have standing to lodge a caveat. Such a result would be contrary to the settled law that no one can have an estate or interest, at law or in equity, in the property of a living person to which they hope to succeed as next of kin.[219] Accordingly, the possibility of caveats by Mr Giurina's next of kin stopping the sale is, at best, highly remote, and does not demonstrate that the declaratory relief sought relates to a hypothetical, rather than a real question.

1. Rule 66.11 provides for substituted performance in the following terms:

(1) Where a judgment requires the person bound to do an act and the person bound does not do the act, the Court may -

(a) direct that the act be done by a person appointed by the Court; and

(b) order the person bound to pay any costs and expenses occasioned by the default.

(2) Paragraph (1) does not affect -

(a) the power of the Court under section 22 of the Act or section 60 of the Trustee Act 1958;

(b) the power of the Court to punish for contempt.

1. Rule 66.01 defines 'person bound' to be a person against whom a judgment is entered or given or an order is made.
2. Rule 66.11 allows for the Court to direct a person appointed by the Court to do acts that a person is bound to do pursuant to a judgment. Examples of the use of the power include substituted performance of obligations to transfer land and domain names.[220]
3. Clearly the Court has jurisdiction to order substituted performance, however its utility in the present circumstances is difficult to understand. The plaintiffs submit that the relief they seek is substituted performance, in that they are asking for the Court to direct that the Sheriff do what it is that Mr Giurina is bound to do under the Costs Orders. That is, pay money to the plaintiffs. However, in my view, in truth, the relief they seek is simply for the Sheriff to undertake their duties under the Sheriff Act upon clarification that they may do so in light of the parties' dispute as to whether the proceeds of sale of the Property are Mr Giurina's property.
4. The Sheriff's duties in execution of the Warrant are clear. The Sheriff is required to apply proceeds from the sale of Property seized for the payment of payable amounts in accordance with the priorities set out in Division 2 of Part IV of the Sheriff Act.[221] A 'payable amount' is defined to mean the amount specified in a money warrant as being required to be paid by the person named or described in the money warrant.[222] The definition of 'money warrant' includes a warrant of seizure and sale.[223] Where, like here, there are multiple warrants, the Sheriff must apply the proceeds in order of receipt by the Sheriff of the warrants to which the proceeds relate.[224] In my view, upon clarification that the proceeds of sale of the Property are Mr Giurina's property and are affected by the Warrant, it is not necessary to engage r 66.11 for the purpose of clarifying that the Sheriff may apply those proceeds in execution of the Warrant.

(1) The Court may make such order as it thinks fit in aid of the enforcement of a warrant of execution and for that purpose may make an order that any person, whether or not a party -

(a) attend before the Court to be examined;

(b) do or abstain from doing any act.

(2) An application for an order under paragraph (1) may be made by the sheriff or other person to whom a warrant of execution is directed.

1. Rule 66.15 provides the Court with a broad power to make such orders as it thinks fit in aid of the enforcement of a warrant of execution, and that power is not limited by the types of orders identified in paragraphs 1(a) and 1(b).[225] The term 'warrant of execution' is not defined in r 66.15, or elsewhere in Order 66, but r 68.01 defines a warrant of execution to include a warrant of seizure and sale.
2. Under r 66.15(2), the Sheriff, or 'other person to whom a warrant of execution is directed' may apply for an order under r 66.15. Given the permissive (rather than restrictive) language of by whom an application 'may be made', standing is not restricted to the Sheriff or a person to whom the warrant is addressed. A judgment creditor or other parties interested in the execution of the warrant in question may engage r 66.15.[226]
3. The Court's power under r 66.15 'is a wide one'.[227] Examples of orders made under r 66.15 include:

(a) a declaration that a sham tenancy agreement does not prevent or stand in the way of the Sheriff executing a warrant of possession;[228]

(b) a direction to the Sheriff to execute the warrant forthwith, so as to 'clear the air' for execution in light of allegations that enforcement actions will interfere with someone's legitimate rights;[229]

(c) restraining orders to prevent entry upon land and interference with the plaintiff's power of sale of property;[230]

(d) orders granting buyers access to the property;[231]

(e) orders for delivery up of the duplicate certificate of title to the Prothonotary pending the sale of the property;[232] and

(f) orders permitting the Sheriff to sell property without a reserve price on certain conditions.[233]

1. Each order was made in circumstances where the Sheriff had encountered difficulties in executing a warrant, and the order was made with a view to rendering the Sheriff with assistance. As to the difficulties the Sheriff might face, Derham AsJ said in Capital Securities XVI Pty Ltd v Kozina:

Mr Abrams made clear that the Sheriff faces real difficulty when confronted with difficult issues that may involve her actions in enforcing a warrant interfering with legitimate rights of occupation, and thus exposing her to liability. The Sheriff is not in a position to determine who is in the right and, having regard to the decision of Beach J in Grayridge, it is appropriate to 'clear the air' and make an order directing the Sheriff to execute the Warrant forthwith.[234]

1. I am satisfied that the Court does have the power to grant the relief sought under r 66.15. The plaintiffs have standing to seek the orders, and the orders sought are in respect of a valid warrant of execution, in respect of property that I have found is captured by the Warrant.
2. Mr Giurina submits that it would only be appropriate to grant relief under r 66.15 if the judgment debtor and the owner of the Property are the same person. I have found that subject to the Sheriff applying the proceeds of sale to meet the executor debts, the proceeds are Mr Giurina's property and are available to meet judgments made against him personally. Thus, in the circumstances, the proceeds are property as specified in the Warrant. As referred to at paragraph 72 above, it is irrelevant that the judgment debtor (Mr Giurina) is not the registered proprietor of the Property.
3. Further, Mr Giurina submits that r 66.15 is only available to provide remedies where there is obstructive conduct impeding the Sheriff from carrying out their duties. I do not accept that this provides a limitation on the Court's power under r 66.15. Rule 66.15 is expressed in broad terms allowing the Court to make orders as it sees fit in aid of execution of a warrant. Accordingly, provided that there is a valid warrant, and the Court is satisfied that the orders will aid in the enforcement of that warrant, the Court has the power to make the orders.

F.3 Should the Court grant the relief sought?

1. In my view it is appropriate to grant declaratory relief in a similar form to that sought by the plaintiffs. There are a number of discretionary factors that weigh in favour of making a declaration and ancillary order. Absent clarification that the proceeds of sale of the Property are Mr Giurina's property and affected by the Costs Orders and the Warrant, the Sheriff will not execute the Warrant against the proceeds. This is because the Warrant does not specify the Property, and the Court has declared that Mr Giurina, as executor of the Estate, is the proprietor of the Property.[235]
2. Given that I have found that subject to the Sheriff's execution of any warrants concerning judgment debts incurred as executor of the Estate, the proceeds of sale of the Property are Mr Giurina's property, declaratory relief will clarify the competing rights raised as between the plaintiffs and Mr Giurina that the Sheriff is not otherwise in a position to assess. This, together with the ancillary relief sought under r 66.15 or the Court's inherent jurisdiction will have the effect of 'clearing the air' to enable the Sheriff to exercise their duties.
3. The Costs Orders have been outstanding for more than five years, and the Sheriff has not identified any goods that may be seized in execution of the Warrant. Mr Giurina objected to being described as impecunious.[236] However, he did admit to obtaining fee waiver relief in this Court on the basis of financial hardship, including with respect to this proceeding.[237] There is also evidence that he has submitted to this Court, albeit some years ago, that he was impecunious and unable to pay the Court's fees and cost orders.[238]
4. Regardless of his financial situation, Mr Giurina has made it very clear that he will do anything he can to avoid paying the Costs Orders. Under cross-examination, Mr Giurina said 'I'm not going to pay them until all the rights and the liabilities between the parties have been resolved' as 'the question of liability hasn't been finally determined in my viewpoint'[239] and 'the costs orders in my mind are not the source of the liability'.[240] Mr Giurina refused to give an undertaking to the Court that he would pay the Costs Orders upon receipt of the proceeds of the Property's sale.[241]
5. The plaintiffs' counsel asked Mr Giurina whether the Costs Orders would be paid out of the proceeds of sale of the Property paid to him by the Sheriff, he said:

That's a hypothetical situation but it would again depend all on the circumstances at the time because if - and it's a big if, if the property were my property and this had been undertaken on the basis that it is my personal property with the proceeds that are my personal proceeds, which is in essence what I'm arguing they are not, what I would do would seek - and I'm going to anyway, would seek a resolution of the issues that I have against the current plaintiffs. When I say the current plaintiffs, being the Owners Corporation. So I would initiate a writ, that's why I tried to get some resolution vis-à-vis the two summonses which I brought, but I was told that can't be done within the context of those two proceedings.[242]

1. That is, Mr Giurina does not accept he has a present liability in respect of the Costs Orders, but rather, he considers that his liability has not yet crystallised and is subject to some sort of set off that he may obtain through a judgment against the plaintiffs in proceedings that he has yet to commence. This is an extraordinary position for a man of legal learning to take. The Costs Orders are regular and perfected orders of this Court, made over five years ago. They are due and payable now, and Mr Giurina's liability to the plaintiffs is not contingent in any way.
2. The two summonses that Mr Giurina refers to in the above extract of the transcript of Mr Giurina's cross-examination are those filed by him on 7 December 2023 in S CI 2018 00168 and S CI 2018 02290. By those summonses, Mr Giurina sought stays of execution of two of the costs orders made in favour of the plaintiffs, including the Costs Orders sought to be enforced in this proceeding. In addition in S CI 2018 00168, Mr Giurina sought an order setting aside an order made on 10 April 2019 which stayed the proceeding until further orders by reason of Mr Giurina's failure to provide security for costs. He also sought an order for payment from the plaintiffs in the sum of $167,941.61 (plus interest) for his 'Monetary Claims'. The Monetary Claims are claims that Mr Giurina says he has against the OC dating back to the time that he was its manager, being a loan (outstanding since 2014), fees for legal services (outstanding since 2012) and management expenses (outstanding since 2011). The plain purpose of Mr Giurina's summonses was to prevent the plaintiffs from enforcing the debt owed to them pursuant to the Costs Orders, including by way of the relief sought in this proceeding.
3. On 16 February 2024, I delivered a ruling dismissing Mr Giurina's two summonses with costs.[243] I found that it would not be in the interests of justice to deprive the plaintiffs of the benefit of the Costs Orders on the basis of the proposed appeals, which had not yet been instituted and were out of time. I found that the asserted Monetary Claims against the plaintiffs did not warrant a stay of execution, because inter alia, despite being raised by a letter of demand issued more than 10 years ago, they had not otherwise been pursued, and are prima facie out of time.[244] Further, the claim for the loan and legal fees appears to have been considered and rejected by VCAT.[245] I refused to set aside the order staying S CI 2018 00168, because Mr Giurina had not articulated a valid basis to vacate the order.[246] I also refused to make an order for payment to Mr Giurina of the Monetary Claims on the basis that it is not appropriate for the Monetary Claims to be brought by summons in S CI 2018 00168. Rather they ought to be pursued by instituting proceedings in the appropriate jurisdiction.[247]
4. Mr Giurina said that upon finalisation of the administration of the Estate, the Property (and presumably its proceeds), would not necessarily be distributed to himself personally and thereby available to his judgment debtors. Mr Giurina submitted that:

The point is this, I'm not obligated to put it in my name, I could hold it on trust under a family trust. There are all sorts of options. When the estate - and this is the point, if I had the opportunity, when the estate is finally administered my option is [to] go to an estate planner, what's the best way of structuring the holding of the estate.[248]

...

So you may have a situation where you have a family trust where it's not required that there be an actual transfer. And there are all sorts of - and I'm not an expert in this area, all sorts of benefits, taxation wise and so forth.[249]

1. Aside from the Warrant, the plaintiffs have sought to enforce the Costs Orders through a sequestration order. However, on application by Mr Giurina, the bankruptcy notice issued by the plaintiffs was set aside on 24 October 2013 on the grounds that his Monetary Claims constituted an offsetting claim.[250]
2. The plaintiffs asked the Court to infer that Mr Giurina has delayed administration of the Estate and distribution of the Property to himself so as to ensure that the Property remains out of the reach of his creditors. I accept that this inference may be drawn from the same facts from which I have concluded that subject to payment by the Sheriff of the debts incurred by Mr Giurina as executor, that the administration of the Estate is complete. The only explanation given by Mr Giurina for the need for the administration to remain on foot is his unsubstantiated assertion that a fraud on the deceased requires investigation - an investigation he has not conducted despite the 22 plus years that have passed since he says he became aware of it.
3. Concerningly, Mr Giurina has characterised the ownership of the Property in whichever manner suits him for the forum that he happens to be in. From the first hearing in this proceeding on 12 July 2023, Mr Giurina has contended that the Property is property of the Estate and is not owned by him personally. However, in the proceedings concerning the Council, which have been ongoing throughout 2023 and 2024 before other judicial officers of this Court, Mr Giurina's contention is that he owns the Property personally. These are not isolated events, and they cannot be chalked up to an honest mistake or confusion, particularly given that Mr Giurina's has practised law. This pattern of behaviour was noted by Matthews AsJ in the caveat removal judgment handed down on 9 March 2023, where her Honour noted that:

Also significantly, the case now advanced by Mr Giurina is completely contradictory to the position he took in the Graffiti Proceeding ...I infer that it suited Mr Giurina to portray the Property as part of the Estate in that proceeding, whereas it does not suit him here.[251]

1. In the appeal of that decision, the Court of Appeal found that from the outset of the dispute between Mr Giurina and the Council in 2019, until he lodged a caveat claiming a personal interest in the Property on 27 July 2022:

Mr Giurina conducted matters as the executor of the estate, on the basis that the property formed part of the estate. In the course of doing so, he asserted that the property was part of the estate and that he had no personal interest in it.[252]

On one view of the history of this proceeding, and notwithstanding Mr Giurina's protestations to the contrary, if the costs orders have been made against him in the wrong capacity because he is entitled to be registered on the title of the property as the freehold owner, all of this has come about through his failure to say at any stage of the various proceedings prior to lodging the caveats, that the property in fact belonged to him personally.

If there was any doubt in Mr Giurina's mind as to his rights personally or as the executor of the estate, he should have commenced the various proceedings he has taken against the Council in both his personal capacity and his capacity as executor. Contrary to his submissions, the fact that the two emergency notices issued under the Building Act were addressed to 'Estate of C Nacinovich' was no impediment to Mr Giurina being frank with the Council and the courts which heard his proceedings and applications about the ownership of the property - a matter peculiarly within his own knowledge given his dealings with himself as both executor and beneficiary.[253]

1. Mr Giurina's predilection to say whatever might suit him in a particular forum, including in sworn evidence, lends further weight to the conclusion that his unsubstantiated assertion that the Estate remains under administration for the purpose of investigating the suspected fraud on the testator ought to be given very little weight. It is also a discretionary factor that weighs in favour of granting the plaintiffs the relief they seek.
2. I therefore accept that absent the Court granting the relief sought by the plaintiffs, it is highly likely that Mr Giurina will not pay the Costs Orders of his own accord out of the proceeds of sale of the Property, and further, that he will seek to challenge any enforcement action the plaintiffs may take. This will lead to further costs, time and expense, and use of the Court's limited resources.
3. The plaintiffs may have other remedies available to them for the purpose of enforcing the debt. The plaintiffs suggested that the appointment of a receiver by way of equitable execution may be available. I agree with the plaintiffs submission that this is not necessary given the common law remedies available to the plaintiffs as outlined in this judgment.
4. If the declaration and ancillary order are made, Mr Giurina will be deprived of the right to address the Costs Orders in such a manner as he sees fit upon receipt of the proceeds of sale of the Property. It will also restrict his ability to deal with the full amount of the proceeds, as the Sheriff will pay the Costs Orders, leading to Mr Giurina receiving a lesser amount following execution of the Warrant. However, given Mr Giurina's sworn evidence that he does not consider himself to be liable to pay the Costs Orders, in my view, this factor is of limited weight against granting the relief sought.
5. I have not identified any other discretionary factors that might weigh against granting the plaintiffs the relief they seek, and Mr Giurina did not raise any further matters that have not already been addressed in this decision.
6. In my view, the relief sought by the plaintiffs is consistent with the overarching purpose that the Court must seek to give effect to pursuant to s 8 of the Civil Procedure Act. That, is the facilitation of the just, efficient, timely and cost-effective resolution of the real issues in dispute. Here the real issues in dispute are whether the proceeds of sale are Mr Giurina's property, and Mr Giurina's compliance with the costs judgment made against him. The relief sought by the plaintiffs resolves these issues.
7. For these reasons, it is appropriate to grant relief of the nature sought by the plaintiffs pursuant to r 66.15 and the inherent jurisdiction of the Court.
8. I will declare that:

(a) the proceeds from the sale of the Property by the Sheriff, subject to the Sheriff first applying them in accordance with the Sheriff Act and in execution of any warrants issued in respect of debts owed by the executor of the Estate ('Proceeds'), are the property of Mr Giurina; and

(b) the Proceeds are affected by the Costs Orders and the Warrant.

1. This wording is intended to make clear that if the Sheriff holds warrants issued to Mr Giurina in his capacity as executor of the Estate, that these amounts are paid out of the proceeds of sale in priority to the amount due under the Warrant. The reason for this is that payment of these amounts will finalise the administration of the Estate.
2. It is also appropriate to 'clear the air' and make an order directing that the Sheriff execute the Warrant as against the Proceeds (as defined). I do not consider that the balance of the ancillary relief sought by the plaintiffs in paragraph 3 of their proposed orders is necessary, as it seeks to set out what the Sheriff is obligated to do under the Sheriff Act when executing a warrant. Namely, applying proceeds from the sale of seized property to payable amounts in accordance with Division 2 of Part IV of the Sheriff Act. Upon clarification that the Warrant may be executed as against the Proceeds, it is not necessary to spell out these mechanics.

1. The plaintiffs seek a costs order in the following terms:

An order that Mr Giurina pay the Plaintiffs' costs of and incidental to the proceeding, together with the costs reserved by Steffensen AsJ on 23 February 2023 in S CI 2018 00168, and that such sum is to be paid by the Sheriff to the Plaintiffs, out of the Proceeds, in addition to the sum described in Order 3 above.

1. The Court has reserved the question of costs in relation to the following:

(a) the plaintiffs' application for leave to further amend the Amended Originating Motion, which was granted by order made on 12 July 2023 with costs reserved;

(b) Mr Giurina's summons dated 11 July 2023, as amended on 11 October 2023, seeking that the proceeding be struck out or alternatively, be summarily dismissed, which was dismissed by order made on 15 December 2023 with costs reserved;

(c) the plaintiffs' application for leave to file and serve a second further amended originating motion, which was granted by order made on 15 December 2023, but in respect of which no consequential costs order has yet been made; and

(d) Mr Giurina's summons filed on 5 March 2024, pursuant to which an order was made on 13 March 2024 setting aside a subpoena issued to him by the plaintiffs, with Mr Giurina's costs reserved.

1. In addition, the Court has made costs orders in favour of the plaintiffs in respect of Mr Giurina's summonses filed on 7 December 2023 in S CI 2018 02290 and S CI 2018 01168 seeking, inter alia, a stay of execution of the Costs Orders (as referred to in paragraphs 201-202 above). On 23 February 2024, the Court ordered that Mr Giurina pay the plaintiffs' costs of and incidental to the summonses on a standard basis and in a gross sum to be fixed by the Court, and such costs to be costs in this proceeding. The gross sum has not yet been fixed by the Court, as the plaintiffs have not yet adduced evidence or made submissions as to the appropriate gross sum.
2. The plaintiffs have been successful in this proceeding, and ordinarily, costs ought to follow the event. However, the manner in which this proceeding has been conducted by the plaintiffs will be relevant to the consideration of the appropriate costs order, and the extent to which the plaintiffs will be entitled to payment of all of their costs. For example, the plaintiffs have changed the form of orders sought on a number of occasions and made late concessions, in that:

(a) initially, the plaintiffs sought to enforce seven costs orders made against Mr Giurina.[254] Ultimately, however, after a number of changes of position, the plaintiffs confirmed on the last day of trial that they only seek to enforce one costs order;[255]

(b) initially, the plaintiffs sought an order that following the sale of the Property, the executor of the Estate pay into Court an amount equivalent to the seven costs orders.[256] Next, they sought orders for payment out of Court of that amount into the plaintiffs' solicitor's trust account.[257] For the period between 6 October 2023 until 3 April 2024, the plaintiff sought declarations that the Property and any proceeds of its sale is property of Mr Giurina.[258] During the course of trial, on 3 April 2024, the plaintiffs advised that they no longer pressed for declarations that the Property is Mr Giurina's, and confined their case to seeking orders with respect to the proceeds of sale of the Property;[259] and

(c) the plaintiffs conceded on the last day of trial that s 18(1) of the OC Act applies, such that the OC did require a special resolution to authorise the commencement of this proceeding. This concession was made after much time and effort was spent by the parties traversing evidence and submissions on this issue, including the affidavit of Ms Tara Plumbe filed on 27 March 2024, after the trial had commenced.[260]

1. Insofar as the plaintiffs seek an order that the Sheriff pay to the plaintiffs their costs of this proceeding out of the Proceeds, it is not immediately apparent to me that this is appropriate given the costs have not yet been taxed, and no warrant has yet been issued in respect of their recovery.
2. In light of these matters, I direct the parties to confer as to the appropriate costs order to arise from this ruling. In the event that the parties are unable to reach agreement, I will hear the parties on the question of costs, as outlined below.

(a) I will order that:

(i) the proceeding insofar as it is brought by the OC is summarily dismissed; and

(ii) to the extent necessary, that leave be granted pursuant to r 9.03 of the Rules to the first and second plaintiffs to continue this proceeding without the OC being joined as a party.

(b) I will declare that:

(i) the Proceeds[261] are the property of Mr Giurina; and

(ii) the Proceeds are affected by the Costs Orders and the Warrant.

(c) I will order that the Sheriff execute the Warrant as against the Proceeds.

1. I direct the parties to confer on the form of order to arise from this decision, including on the question of costs. By 29 November 2024 the parties are to provide to my Chambers with consent or competing minutes of order, and if there is no agreement, short written submissions not exceeding five pages addressing the form of order.
2. I also direct the plaintiffs to forthwith provide a copy of this decision to the Sheriff and her solicitors, and direct that any written submissions from the Sheriff as to the form of order be provided to the Court and the parties by 28 November 2024.
3. In the event of disagreement, the matter will be listed for a short hearing on 5 December 2024 at 9:30 am for the purpose of making final orders.

[1] Orders 4 and 5 of the Orders made in S CI 2018 00168 on 30 July 2018 by Ierodiaconou AsJ, set out at paragraph 54 below, and Costs Court Order dated 6 December 2018 in S ECI 2018 01147, pursuant to which the costs were taxed and allowed in the sum of $39,840.13 to be paid by Mr Giurina.

[2] Warrant of Seizure and Sale issued on 1 November 2023, Exhibit P-1 to Affidavit of Tara Leigh Plumbe filed on 28 November 2023, 1-2 ('Warrant'). The terms of the Warrant are set out in Part D.1.

[3] Sheriff's Office of Victoria Field Report dated 30 November 2023 in respect of warrant W23014885470, Exhibit P-2 to Affidavit of Tara Leigh Plumbe filed on 12 December 2023, 3-4 ('Sheriff's Field Report').

[4] Death Certificate of Carolina Nacinovich dated 6 March 2002 ('Death Certificate'), Exhibit CJ-1 to Affidavit of Callum Jubb filed on 23 August 2023, 3 ('August 2023 Jubb Affidavit').

[5] Order of the Registrar for Grant of Probate dated 13 September 2002 ('Probate Grant'), Exhibit TP-3 to Affidavit of Tara Leigh Plumbe filed on 8 March 2024, 16 ('March 2024 Plumbe Affidavit').

[6] Orders of Matthews AsJ in Ermanno Giurina as Executor of the Estate of C Nacinovich v Greater Geelong City Council (Supreme Court of Victoria, S ECI 2019 04286, 24 May 2022) ('Warrant Declarations').

[7] Orders of Matthews AsJ in Greater Geelong City Council v Ermanno Giurina (Supreme Court of Victoria, S ECI 2022 03279, 9 March 2023) ('Caveat Removal Order'); Greater Geelong City Council v Giurina & Anor [2023] VSC 59, (Matthews AsJ) ('Caveat Removal Decision'), upheld on appeal in Giurina v Greater Geelong City Council [2023] VSCA 299 (Beach and McLeish JJA) ('Matthews AsJ Appeal').

[8] Giurina v Registrar of Titles [2023] VSC 784 (Barrett AsJ); Order of Forbes J in Ermanno Giurina v Registrar of Titles (Supreme Court of Victoria, S ECI 2024 00272, 26 February 2024) ('Forbes J Order'), upheld on appeal in Giurina v Sheriff (Vic) [2024] VSCA 112 (Walker and Orr JJA) ('Forbes J Appeal'). The Forbes J Appeal was handed down after the trial of this proceeding had concluded.

[9] Ibid Forbes J Order, upheld in Forbes J Appeal.

[10] Forbes J Appeal (n 8) and Matthews AsJ Appeal (n 7).

[11] Transcript of Proceedings, Ermanno Giurina v The Sheriff of the State of Victoria (Supreme Court of Victoria, S ECI 2024 00204, Forbes J, 26 February 2024) ('Forbes J Ruling').

[12] Forbes J Order (n 8).

[13] Caveat Removal Order and Matthews AsJ Appeal (n 7).

[14] These written submissions updated and replaced those filed by Mr Giurina on 18 March 2024.

[15] [2015] VSC 160 (McDonald J) ('Burbank').

[16] Affidavit of Julia Racheha filed 21 August 2024, [5], which was filed after the trial had concluded ('Racheha Affidavit').

[17] The plaintiffs argued there were two reasons for this. First, it was argued that s 18(1) of the Owners Corporations Act 2006 (Vic) had no application as this proceeding concerns the enforcement of a costs order made in proceedings to which the Owners Corporation Plan No 1579 ('OC') was a respondent, and secondly, because this proceeding was commenced by the plaintiffs' insurer in the name of the OC pursuant to a right of subrogation.

[18] Transcript of Proceeding, hearing on 10 May 2024, T447, T505 ('May 2024 Transcript').

[19] [2014] NSWCA 409; (2014) 88 NSWLR 488.

[20] Ibid 490-491 [1]-[8] (Basten JA), 499-501 [44]-[52] (Barrett JA), 507-511 [89]-[107] (Leeming JA, with whom Basten JA agreed).

[21] Ibid 501-502 [54]-[59], 503 [65] (Barrett JA); 511-512 [106]-[109] (Leeming JA, with whom Basten JA agreed).

[23] Ibid 511-512 [108] (Leeming JA, with whom Basten JA agreed).

[24] Burbank (n 15) [41] (McDonald J).

[27] [2022] VCAT 1203 (Member D Kim) ('Gilmore').

[31] Owners Corporations and Other Acts Amendment Act 2021 (Vic), s 9, which commenced on 1 December 2021.

[32] Explanatory Memorandum, Owners Corporations and Other Acts Amendment Bill 2019 (Vic), 5, cl 9.

[33] Gilmore (n 27) [23(a)].

[34] Burbank (n 15) [41].

[35] The argument was first raised in the Supplementary Affidavit of Ermanno Giurina filed on 23 August 2023, [3] ('August 2023 Giurina Affidavit'). See also supplementary submissions of Ermanno Giurina filed on 25 September 2023, [20]-[25].

[36] Transcript of Ruling, hearing on 15 December 2023, T54:19-T55:23.

[37] May 2024 Transcript (n 18) T445:6-8.

[39] Contract of Appointment Owners Corporation Manager dated on 1 February 2017 ('OC Contract'), Exhibit EG- 1 to Affidavit of Ermanno Giurina filed on 25 September 2023, 1-16 ('September 2023 Giurina Affidavit'). Mr Giurina deposes that he believes the current contract between the OC and Strata Connect Pty Ltd ('Strata Connect') is in the same form, see September 2023 Giurina Affidavit (n 39) [10]-[12].

[40] OC Contract (n 39) 6.

[42] Order of Ierodiaconou AsJ in Ermanno Giurina v Mara Deak & Ors (Supreme Court of Victoria, S CI 2018 00168, 30 July 2018).

[43] See, for example, Australian Workers Union v Bowen [1946] HCA 24; (1946) 72 CLR 575 where the High Court upheld a decision to dismiss a bankruptcy petition because it was based upon a bankruptcy notice issued by some but not all of the joint judgment creditors.

[44] The Warrant (n 2) states that it was 'issued at the request of the defendants', being Ms Deak, Strata Connect and the OC.

[45] See for example, the definition of 'proceeding', r 1.13 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to mean any matter commenced by writ or originating motion ('Rules').

[47] March 2024 Plumbe Affidavit (n 5) [8].

[48] Transfer of Land Act 1958 (Vic) s 52. See paragraph 69 below.

[49] Sheriff Act 2009 (Vic) ss 23 ('Sheriff Act').

[50] Ibid s 3.

[51] Ibid s 24.

[52] Ibid s 3, definition of 'payable amount' which incorporates the definition of a 'money warrant', which is defined to include a 'civil warrant', which in turn is defined to include a warrant of seizure and sale directed to the sheriff.

[53] Adrian A S Zuckerman et al, Zuckerman on Australian Civil Procedure (LexisNexis, 2nd ed, 2024) [24.32] ('Zuckerman').

[54] David L Bailey, Daniel D Nguyen and Nicolas C Dour, LexisNexis, Civil Procedure Victoria, vol 1 (at Service 338) [69.01.10] ('Civil Procedure Victoria'); Pyke v Duncan [1989] VicRp 13; [1989] VR 149.

[55] Stanley Robinson, The Property Law Act Victoria (The Law Book Company Limited, 1992), 453. See also the Victorian Law Reform Commission, Review of the Property Law Act 1958 (Final Report No 20, 30 September 2010), 98 [6.134]-[6.135] ('VLRC Property Law Act Review').

[56] Trustees Executors and Agency Co Limited v Butler [1905] ArgusLawRp 89; [1905] VLR 650, 667A (Beckett J, with whom Madden CJ agreed), ('Butler'). Butler considered s 125 of the Real Property Act 1890 (Vic), which is the predecessor to s 208(1) of the Property Law Act 1958 (Vic) ('Property Law Act') and is in almost identical language. See also Re Cox; Perpetual Trustee Co Ltd v Cox [1903] NSWStRp 28; (1903) 3 SR (NSW) 356, 362 (Simpson CJ) ('Re Cox'), citing Evans v Stephen (1882) 3 NSWR 154. The plaintiffs' counsel also relied upon Simpson v Forrester [1973] HCA 4; (1973) 132 CLR 499 to the effect that at common law a writ of fieri facias attaches to equitable interests in land. This case confirms that the Queensland sheriff may sell an equity of redemption in execution of a writ of fieri facias at common law. However, s 208(1) of the Property Law Act extends to equitable interests in land, and expressly provides that an equity of redemption is liable to satisfy debts.

[57] Property Law Act (n 56) s 209; Transfer of Land Act 1958 (Vic) s 52(2). See also Property Law Act s 208(2), which gives the sheriff the power to seize and take possession of land held on trust for the judgment debtor where the warrant specifies that land. See also the VLRC Property Law Act Review (n 55), 99 [6.139]-[6.144].

[58] Rules (n 45) r 68.04(3.1).

[59] See for example, Warrant Declarations [made by Matthews AsJ] (n 6).

[60] Caird Seven Pty Ltd v Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 3) [2016] NSWSC 1452; (2016) 92 NSWLR 457, 462 [16], (Emmett AJA), most recently cited in Jaken Properties Australia Pty Ltd v Naaman [2023] NSWCA 214; (2023) 112 NSWLR 318, 351 [120] (Leeming JA).

[61] See Mosman v Sachs [1885] 2 QLJ 57 (Lilley CJ).

[62] Civil Procedure Victoria (n 54) [69.01.85] and the authorities cited therein.

[63] Supreme Court Act 1986 (Vic) s 42 and Bankruptcy Act 1966 (Cth) ss 116(2)(b)(c), (ca).

[64] Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPC 2; (1964) 112 CLR 12; [1965] AC 694; Official Receiver in Bankruptcy v Schutlz [1990] HCA 45; (1990) 170 CLR 306, 312 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ) ('Schultz').

[65] G E Dal Pont, Law of Executors and Administrators (LexisNexis, 2022) [3.2] ('Law of Executors and Administrators').

[66] Ibid [3.6], citing Pagels v MacDonald [1936] HCA 15; (1936) 54 CLR 519 ('Pagels') at 526 (Latham CJ) and Probert v Commissioner of State Taxation (1998) 72 SASR 48 at 53 (Olsson J).

[67] G E Dal Pont, Law of Succession (LexisNexis, 3rd ed, 2021) 324-325 [10.43] ('Law of Succession').

[68] J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis, 8th ed, 2016) 29-30 [2.40] ('Jacobs' Law of Trusts'), citing Pagels (n 66) at 526; Martin v Martin [1903] NSWStRp 29; (1903) 3 SR (NSW) 156 (Simpson CJ in Eq); Attenborough v Solomon [1913] AC 76, 83 ('Solomon'); In the Estate of Just (deceased) (No 2) (1974) SASR 515,523 (Jacobs J); Sullivan v Brett [1981] 2 NZLR 202,207 (Somers J, with whom McMullin and Barker JJ agreed) ('Sullivan').

[69] Schultz (n 64) 314 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).

[70] Transcript of Proceeding, hearing on 27 March 2024, T147:20-25 ('March 2024 Transcript').

[71] Victoria, Parliamentary Debates, Legislative Assembly, 1 May 1984, 4165.

[72] Explanatory Memorandum, Supreme Court Bill 1986 (Vic) cl 42.

[73] Law of Executors and Administrators (n 65) 69 [3.6].

[74] Sheriff Act (n 49) ss 19, 20, 21, 23, and 24.

[75] Evans v Crosby (1893) 5 QLJ 95 (Griffiths CJ).

[76] See for example, Zuckerman (n 53) 1063 [24.67]-[24.68].

[77] Re Cox (n 56).

[78] Butler (n 56).

[79] See paragraph 68(b) above, and authorities cited therein.

[80] [1737] EngR 26; [1738] 1 Atkyns 463; 26 ER 294.

[81] [1896] UKLawRpCh 65; [1896] 1 Ch 968.

[84] Forbes J Appeal (n 8) [57] (Walker and Orr JJA); Yule v Irwin (No 2) [2016] SASC 178, [161] (Nicholson J) [158]; Jacobs' Law of Trusts (n 68) 29-30 [2.40], 30-31 [2.44], citing Re Claremont [1923] 2 KB 718 ('Re Claremont').

[85] Law of Executors and Administrators (n 65) 74 [3.16].

[86] Ibid 73-74 [3.15]-[3.16]; Hiralal v Hiralal [2013] NSWSC 984, [158] ('Hiralal').

[87] Hiralal (n 86) [159], citing Australian Olympic Committee Inc v The Big Fights Inc [1999] FCA 1042, [413] (Lindgren J) ('Big Fights'); In the Estate of Dunn [1963] VicRp 27; [1963] VR 165, 166 (Herring CJ) ('Dunn'); Easterbrook v Young [1974] 1 NSWLR 676, 682 (Holland J) ('NSW Easterbrook'); Re Clark [1937] WALawRp 17; (1937) 39 WALR 118, 123 (Dwyer J, Northmore CJ agreeing at 124) ('Re Clark').

[88] Re Clark (n 87) 123; Dunn (n 87) 166; Blake v Bayne [1908] UKPCHCA 2; (1908) 6 CLR 179.

[89] Holdway v Arcuri Lawyers [2008] QCA 218, [77].

[90] Curran v McGrath [2010] QSC 172, [26]-[27].

[91] Hiralal (n 86), [159]; Dunn (n 87) 166; Stokes v Churchill; Estate of Fryer (1994) NSW ConvR 55-694, 59-968 ('Stokes'); Solomon (n 68) 83; Sullivan (n 68),207 (Somers J, with whom McMullin and Barker JJ agreed); Law of Executors and Administrators (n 65) 77 [3.23].

[92] Hiralal (n 86); Big Fights (n 87) [413], [415]; Re Claremont (n 84) 721; Stokes (n 91) 59-968.

[93] See for example, Law of Executors and Administrators (n 65) 71 [3.10], 73 [3.15].

[95] Simmons v Ross [2018] VSC 306, [78]-[79] (Derham AsJ), citing Jacobs' Law of Trusts (n 68) 29-30 [2-40].

[96] Porteous v Rinehart [1998] WASC 270; (1998) 19 WAR 495, 503 (White J) ('Porteous').

[97] Ibid 503, citing Re Earl of Stamford; Payne v Stamford [1895] UKLawRpCh 182; [1896] 1 Ch 288, 297 (Stirling J); Re Cockburn's Will Trusts; Cockburn v Lewis [1957] 1 Ch 438, 439-450; Solomon (n 68) 82-83; Wise v Whitburn [1924] 1 Ch 460,468-469 (Eve J); Re Donkin, Deceased; Riechelmann v Donkin [1966] Qd R 96, 119 (Gibbs J). See also Law of Succession (n 67) 323-324 [10.46].

[98] Porteous (n 96) 503-504; see also Re Roth [2022] VSC 511, [66] (McMillian J); Partridge v Equity Trustees Executors and Agency Co Lts (1947) 75 CLR 149, 166 (Starke, Dixon and Williams JJ).

[99] Alexiou v Alexiou [2020] NSWSC 748, [41]-[42] (White J).

[100] [2024] VSCA 112, Forbes J Appeal (n 8).

[101] Forbes J Appeal (n 8) [50] (Walker and Orr JJA) (citations omitted).

[102] [1977] HCA 16; (1977) 136 CLR 308, ('HCA Easterbrook'), referred to in Forbes J Appeal (n 8) [50], footnote 30.

[103] Ibid; 316-317 (Barwick CJ, Mason and Murphy JJ) quoted in Forbes J Appeal (n 8) [50], footnote 30.

[104] NSW Easterbrook (n 87).

[108] HCA Easterbrook (n 102) 324.

[111] Forbes J Appeal (n 8) [50].

[112] DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431, 463-464 (Aickin J), cited with approval in Peldan v Anderson [2006] HCA 48; 227 CLR 471, 485 [37] (Gummow ACJ, Kirby, Hayne, Callinan and Crennan JJ).

[113] See Giurina v Registrar of Titles [2023] VSC 784, [23]-[24] (Barrett AsJ).

[114] See A Learmonth, C Ford and J Evans-Gordon, Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (Sweet & Maxwell, 22nd ed, 2023) [72-05], [72-07].

[115] Forbes J Appeal (n 8) [50] (Walker and Orr JJA).

[116] Death Certificate (n 4).

[117] The last will and testament of Caroline Nacinovich dated 26 March 1995 ('Will'), Exhibit CJ-1 to August 2023 Jubb Affidavit (n 4) 1-2.

[119] Probate Grant (n 5).

[120] Affidavit of Executor dated 23 August 2002, [10] ('Executor's Affidavit'), and Exhibit C thereto ('Inventory of Assets & Liabilities'), Exhibit TP-3 to March 2024 Plumbe Affidavit (n 5) 25-27.

[121] Will (n 117) cl 3.

[123] Executor's Affidavit (n 120), [10]; Inventory of Assets and Liabilities (n 120).

[124] Warrant Declarations (n 6). See also Caveat Removal Decision (n 7) [14(m)-(n)].

[125] Caveat Removal Order (n 7).

[126] Matthews AsJ Appeal (n 7).

[127] Forbes J Order (n 8).

[128] Forbes J Appeal (n 8).

[129] Caveat Removal Decision (n 7) [135]-[149].

[133] Law of Succession (n 67) 321-322 [10.43].

[134] Matthews AsJ Appeal (n 7) [48] (Beach and McLeish JJA), citing A_dministration and Probate Act 1958_ (Vic), s 39A, which provides for the payment of estate debts and liabilities from the sale of estate assets.

[136] Forbes J Ruling (n 11) T80-88.

[141] Forbes J Appeal (n 8) [48] (Walker and Orr JJA).

[145] August 2023 Giurina Affidavit (n 35) [5]. See also Revised Submissions of Ermanno Giurina filed on 4 April 2024, [83] ('Revised Giurina Submissions').

[146] August 2023 Giurina Affidavit (n 35) [5].

[147] September 2023 Giurina Affidavit (n 39) [16]-[17].

[150] Sheriff's Field Report (n 3); Transcript of Proceeding, hearing on 5 April 2024, T297 (cross-examination of Mr Giurina) ('April 2024 Transcript').

[151] Ibid T341-342 (cross-examination of Mr Giuirna).

[152] Affidavit of Ermanno Giurina filed on 19 February 2024 in S ECI 2024 00204, [12]-[15] ('Giurina Affidavit in S ECI 2024 00204').

[154] Ibid [12], [14], [16]-[21].

[156] April 2024 Transcript (n 150) T300:22-28 (cross-examination of Mr Giurina).

[157] Ibid T392:11-19 (re-examination of Mr Giurina).

[158] Ibid T302:27, T303:1 (cross-examination of Mr Giurina) (emphasis added).

[160] Giurina Affidavit in S ECI 2024 00204 (n 152) [13].

[161] April 2024 Transcript (n 150) T294 (cross-examination of Mr Giurina).

[167] Application book index in Matthews AsJ Appeal (n 7); April 2024 Transcript (n 150) T261.

[168] See Part E.2.2 above.

[169] Racheha Affidavit (n 16).

[170] Sheriff Act (n 49) ss 32, 43, 46. See also Letter from the Victorian Government Solicitor's Office to the plaintiffs' solicitors dated 25 March 2024, [14] ('VGSO Letter').

[171] Warrant Declarations (n 6).

[172] Executor's Affidavit (n 120) [10].

[173] Giurina Affidavit in S ECI 2024 00204 (n 152) [12].

[174] April 2024 Transcript (n 150) T300:22-28 (cross-examination of Mr Giurina); May 2024 Transcript (n 18) T392:11-19 (re-examination of Mr Giurina).

[175] Ibid T392:11-19 (re-examination of Mr Giurina).

[176] Giurina Affidavit in S ECI 2024 00204 (n 152) [13].

[178] April 2024 Transcript (n 150) T293:24-28, T294:3-10 (cross-examination of Mr Giurina).

[180] Forbes J Appeal (n 8) [9]-[22].

[181] Giurina Affidavit in S ECI 2024 00204 (n 152) [11]-[21]; April 2024 Transcript (n 150) T300:22-28 (cross-examination of Mr Giurina).

[182] Ibid T294-295 (cross-examination of Mr Giurina).

[183] Sheriff Act (n 49) s 46(2).

[184] See paragraph 91(b) above, and the authorities referred to therein.

[185] See paragraph 91(c) above, and the authorities referred to therein.

[186] Caveat Removal Decision (n 7) [164].

[187] Revised Giurina Submissions (n 145) [88].

[188] [1942] Ch 69, 73.

[189] See paragraph 91(a) above, and the authorities referred to therein.

[190] Giurina Affidavit in S ECI 2024 00204 (n 152) [12]-[15].

[191] See paragraphs 120 to 122122 above.

[192] Matthews AsJ Appeal (n 7) [54].

[193] Order of Baker JR in Ermanno Giurina (as Executor of the Estate of Carolina Nacinovich) v Greater Geelong City Council (Supreme Court of Victoria, S ECI 2022 02430, 15 November 2023).

[194] Giurina v Greater Geelong City Council [2021] VSC 103, [148] (Whelan JA).

[195] May 2024 Transcript (n 18) T392:11-19 (re-examination of Mr Giurina).

[196] See paragraph 103above, and the authorities referred to therein.

[197] See paragraph 91(b) above, and the authorities referred to therein.

[198] The terms of the Warrant are reproduced at paragraph 61 above.

[199] Keith Mason, 'The Inherent Jurisdiction of the Court' (1983) 57(8) Australian Law Journal 449, 452.

[200] Australia and New Zealand Banking Group Ltd v Elias [2017] VSC 663; (2017) 53 VR 251, 255 [15] (Mukhtar AsJ) ('Elias').

[201] See, for example, Lei v Lei (2020) 63 VR 102, 107 [25] (Riordan J).

[202] DM & BP Wiskich Pty Ltd v Joseph Saadi (Supreme Court of NSW, Bryson J, 16 February 1996).

[203] Ibid 4-5, cited with approval in Hall v Foster [2012] NSWSC 974, [16] (Ball J); Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711, [266] (Meek J).

[204] [1992] HCA 10; (1992) 175 CLR 564.

[205] Ibid 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ) (citations omitted).

[206] [1999] HCA 9; (1999) 198 CLR 334.

[207] Ibid 355 [45] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

[208] See also r 23.05 of the Rules (n 45).

[209] [2024] VSC 153.

[211] [1972] HCA 61; (1972) 127 CLR 421.

[212] Ibid 438 (Gibbs J) (citations omitted).

[213] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 22 (Gibbs ACJ).

[214] Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122, 137 (Young J).

[215] Eatock v Bolt (No 2) [2011] FCA 1180; (2011) 284 ALR 114,116 [5] (Bromberg J).

[216] [2006] VSC 343; (2006) 14 VR 447.

[217] Ibid 453 [20]-[21] (Warren CJ).

[218] Caveat Removal Decision (n 7) [165], as referred to at paragraph 112(d) above.

[219] See Law of Executors and Administrators (n 65) 69-70 [3.7].

[220] Vella v Waybecca Pty Ltd (No 2) [2015] VSC 678, [96]-[97] (Landsdowne AsJ).

[221] Sheriff Act (n 49) s 43.

[222] Ibid s 3 (definition of 'payable amount').

[223] Ibid s 3.(definition of 'money warrant', which includes a 'civil warrant', which is in turn defined to mean, inter alia, a warrant of seizure and sale).

[225] Capital Securities XVI Pty Ltd v Kozina [2023] VSC 178, [46] (Derham AsJ) ('Capital Securities').

[226] Elias (n 200) 254-255 [13], 255 [16]. See also Capital Securities (n 225) [46].

[227] JG King Pty Ltd v Kim Ngan Thi Do [2012] VSC 545, [21] (Lansdowne AsJ) ('JG King').

[228] Capital Securities (n 225) [78]-[80], [87(a)].

[230] Elias (n 200) 254-255 [9]-[14]; CBA v Young [2010] VCC 1821, [32]-[39] (Kennedy J).

[231] JG King (n 227) [19].

[233] Zhou v Kousal [2012] VSC 187; (2012) 35 VR 419, 424-425 [28]-[31], 438 [108] and 442 [129] (Vickery J); JG King (n 227) [15]-[18].

[234] Capital Securities (n 225) [83].

[235] VGSO Letter (n 170).

[236] April 2024 Transcript (n 150) T326 (cross-examination of Mr Giurina).

[238] Giurina v Owners Corporation No. 1579 [2013] VSC 39, [31] (McMillan J); See also Owners Corporation No 1579 v Giurina [2014] VSC 63, [34] (Woods AsJ); Giurina v Deak (No 2) [2019] VSC 237, [11]-[12], [24] (Matthews JR); April 2024 Transcript (n 150) T326-328; T333-339 (cross-examination of Mr Giurina).

[239] April 2024 Transcript (n 150) T323 (cross-examination of Mr Giurina).

[243] Ermanno Giurina and Maria Deak & Ors (Supreme Court of Victoria, S CI 2018 00168 and S CI 2018 02290, Steffensen AsJ, 16 February 2024) ('Stay Ruling').

[245] Ibid [51], referring to Owners Corporations RP001579 v Giurina [2017] VCAT 1509, [176]-[178], [189], [192], [214] (Member A Dea).

[246] Stay Ruling (n 243)[73]-[88].

[248] April 2024 Transcript (n 150) T371.

[250] Order of Registrar Burns in Ermanno Giurina v Owners Corporation No 1579 & Ors (Federal Court of Australia, VID1020/2013, 24 October 2013); March 2024 Transcript. (n 70) T224 (examination of Mr Giurina).

[251] Caveat Removal Decision (n 7) [140].

[252] Matthews AsJ Appeal (n 7) [16].

[254] Originating Motion filed on 9 December 2022, relief or remedy sought, [1(a)-(g)].

[255] May 2024 Transcript (n 18) T501.

[256] Originating Motion filed on 9 December 2022, relief or remedy sought, [1].

[257] Further Amended Originating Motion filed on 20 July 2023, relief or remedy sought [3]. In addition, the originating motion was amended to specify that the plaintiffs sought interest on the costs orders to be calculated pursuant to the Penalty Interest Rates Act 1983 (Vic).

[258] The plaintiffs' proposed further amended originating motion, Annexure A to the plaintiffs' outline of submissions filed on 6 October 2023, relief or remedy sought, [2]. This was the first time the plaintiffs sought ancillary orders pursuant to rr 66.11, 66.15 of the Rules (n 45) and/or the Court's inherent jurisdiction (relief or remedy sought, [3]). On 15 December 2024, the plaintiffs were granted leave to file a second further amended originating motion by 22 December 2024 which included this relief. However, that order was not complied with, as the wrong document was filed by the plaintiffs. The Second Further Amended Originating Motion was eventually filed on 26 March 2024 pursuant to an extension of time granted that day.

[259] March 2024 Transcript (n 70) T215.

[260] May 2024 Transcript (n 18) T447, T505.

[261] As defined in paragraph 215 above.