SUCCESSION – ADMINISTRATION OF ESTATE – OTHER MATTERS –
where the deceased died intestate and without a spouse –
where the
deceased’s estate fell to be shared equally as between her two surviving
Source
Original judgment source is linked above.
Catchwords
SUCCESSION – ADMINISTRATION OF ESTATE – OTHER MATTERS –where the deceased died intestate and without a spouse –where thedeceased’s estate fell to be shared equally as between her two survivingsons, being the first and second respondents– where the deceased’sestate is said to comprise a property, cash and furniture – where theproperty is the subjectof a proprietary estoppel claim by the first respondentarising from oral representations made to the first respondent by the deceasedthat if the first respondent transferred the land at the property to thedeceased, the deceased would erect a house on the land andwould by her willleave the property to the first respondent – where the administrator wasgranted letters of administrationon intestacy – where the administratorapplied under s 96 of the Trusts Act 1973 (Qld) or s 6 of theSuccession Act 1981 (Qld) for judicial advice or a direction tothe effect that he be authorised to compromise a claim made by the first
respondent for
a declaration of a constructive trust in relation to part of the
assets of the deceased’s estate – where the power of
the court to
give judicial advice to a trustee is inherently discretionary – where
obtaining judicial advice in the context
of the contemplated prosecution or
defence of legal proceedings resolves doubt about whether it is proper for the
trustee to incur
the costs and expenses of prosecuting or defending the
litigation – where a relevant matter to the propriety of a proposed
course
of action by a trustee is whether the trustee has made all reasonable inquiries
to establish the true facts – whether
the administrator has made
reasonable and proper inquiries to enable him to form any confident or informed
view as to the likely
prospects of defending the first respondent’s claims
– whether the Court should provide the judicial advice or direction
sought
by the administrator
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION
AND REVOCATION OF GRANTS – GENERALLY – where
the second respondent
filed an application seeking the revocation of the grant of letters of
administration to the administrator
– where the court has an inherent
jurisdiction to revoke a grant, as well as a statutory power conferred by s 6(1)
of the Succession Act 1981 (Qld) – where the jurisdiction, both
statutory and inherent, is a supervisory and protective one – where
circumstances
have arisen which impel the court to a firm conclusion that the
due and proper administration of an estate would be put in jeopardy
if a
particular person were executor or trustee, the court can properly exercise its
jurisdiction to remove that person as either
– where an application to
revoke a grant represents the most extreme reaction to a failure to perform
representative duties
– where the administrator was appointed from a
position of conflict and, since his appointment, he appears to have adopted
a
somewhat passive approach to investigating the deceased’s estate –
whether the circumstances warrant an order to revoke
the grant of letters of
administration to the administrator
SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND
DUTIES – OTHER MATTERS – where the second respondent
applied for
leave under s 49(2) of the Succession Act 1981 (Qld) to defend the first
respondent’s foreshadowed claim – where leave under s 49(2) is
granted only in “special” or “exceptional” circumstances
– where it must be shown that any proposed
defence would be meritorious in
the sense of raising serious questions to be tried – whether there is a
meritorious defence
to the first respondent’s claim - whether special or
exceptional circumstances exist warranting a grant of leave under s 49(2)
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
COSTS – REGULATED COSTS: GROSS OR FIXED COSTS, LUMP
SUM ORDERS OR CAPPING
ORDERS AND LIKE MATTERS – POWER TO ORDER – where the first
respondent filed an application seeking
that his costs ordered to be payable by
the second respondent pursuant to an order of the Court be fixed – where
the court
may fix an amount of costs under r 687(2)(c) of the Uniform Civil
Procedure Rules 1999 (Qld) – whether a fixed costs order should be
made
Succession Act 1981 (Qld), s 6, s 49(2)
Trusts
Act 1973 (Qld), s 96
Uniform Civil Procedure Rules 1999 (Qld), r
687(2)(c)
Alexander v Perpetual Trustees WA Ltd [2004] HCA 7
(2004) 216 CLR 109,
cited
Bates v Messner (1967) 67 SR (NSW) 187, considered
Petka Inc v His Eminence Petar the Diocesan Bishop of The Macedonian Orthodox
Diocese of Australia
and New Zealand [2008] HCA 42
(2008) 237 CLR 66, cited
Mavrideros v Mack [1998] NSWCA 286
(1998) 45 NSWLR 80, cited
Judgment (20 paragraphs)
[1]
The application filed 16 April 2025 is dismissed.
The application filed 13 June 2025 is dismissed.
The costs of Robert Feyrer payable by Klaus Micro Bjelan pursuant to paragraph 2 of the order dated 9 May 2025 be fixed in the sum of $8,150 including GST.
I will hear the parties as to costs.
[2]
[1] No party contended for any material difference between these statutory provisions. These statutory provisions were regarded as being functionally equivalent in Re Estate of Hurren[2023] QSC 287 at [7].
[3]
[2] Affidavit of the administrator filed 23 June 2025 [6].
[4]
[3]Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand[2008] HCA 42; (2008) 237 CLR 66 at 90 [59].
[6]Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand[2008] HCA 42; (2008) 237 CLR 66 at 90 [60].
[8]Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand[2008] HCA 42; (2008) 237 CLR 66 at 93-4 [71].
[10]
[9]Bastion v Gideon Investments Pty Ltd (in liq) (2000) 35 ACSR 466 at 476 [48]. See also Re Application of Doolan[2023] NSWSC 320 at [308].
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand[2008] HCA 42; (2008) 237 CLR 66, cited