Ivanna Ann-Marie Ferenc Stojic v Simon Stojic [2017] NSWSC 1235

Ivanna Ann-Marie Ferenc Stojic v Simon Stojic [2017] NSWSC 1235

The motion was dismissed because existing orders made by Lindsay J adequately protected the estate by restraining distributions and dealings with estate assets, the evidence did not establish any sufficiently certain and imminent threat warranting urgent removal of Simon as executor before determination of the pending appeal, the Court of Appeal hearing was imminent and might resolve the issue, and in the absence of urgency an application to revoke probate should be brought by statement of claim in fresh proceedings rather than by notice of motion.

Jurisdiction
Australia
Judgment Date
12 September 2017
Procedural Posture
Equity Probate List; Application to Remove Executor / Notice of Motion Seeking Revocation of Probate Grant and Letters of Administration Cta or Reappointment of Special Administrator, Pending Expedited Appeal
Outcome
Application to remove executor refused; plaintiffs' motion dismissed.
Legal Topics
['removal of Executor' 'revocation of Grant of Probate' 'administration of Deceased Estate' 'urgent Interlocutory Relief' 'procedural Requirements for Probate Revocation']
['succession' 'probate' 'equity'] ['removal of Executor' 'revocation of Grant of Probate' 'administration of Deceased Estate' 'urgent Interlocutory Relief' 'procedural Requirements for Probate Revocation']

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Procedural Posture

Equity Probate List; Application to Remove Executor / Notice of Motion Seeking Revocation of Probate Grant and Letters of Administration Cta or Reappointment of Special Administrator, Pending Expedited Appeal

Legal Issues

  1. 1 ['Whether the grant of probate to Simon Stojic should be revoked urgently before the pending Court of Appeal hearing.' "Whether the estate was in imminent jeopardy because of Simon Stojic's alleged unfitness, conflicts, incarceration, alleged non-compliance with orders, and the position of Statewide Office Furniture Pty Limited." 'Whether the application to revoke probate could properly be brought by notice of motion in the existing proceedings rather than by statement of claim in fresh proceedings.']

Ratio Decidendi

The motion was dismissed because existing orders made by Lindsay J adequately protected the estate by restraining distributions and dealings with estate assets, the evidence did not establish any sufficiently certain and imminent threat warranting urgent removal of Simon as executor before determination of the pending appeal, the Court of Appeal hearing was imminent and might resolve the issue, and in the absence of urgency an application to revoke probate should be brought by statement of claim in fresh proceedings rather than by notice of motion.

Court Disposition

Application to remove executor refused; plaintiffs' motion dismissed.

Orders

  • ["The plaintiffs' motion filed on 31 August 2017 is dismissed." "The plaintiffs are to pay the defendant's costs of that motion on the ordinary basis."]