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Budulica v Budulica[2023] QSC 99

Budulica v Budulica[2023] QSC 99

SUPREME COURT OF QUEENSLAND

CITATION:

Budulica v Budulica [2023] QSC 99

PARTIES:

SLAVICA BUDULICA (ALSO KNOWN AS SYLVIA BUDULICA)

(applicant)

v

STANISLAV BUDULICA (ALSO KNOWN AS STAN BUDULICA) AS EXECUTOR OF THE ESTATE OF THE LATE KATICA BUDULICA (ALSO KNOWN AS KAJA BUDULICA AND KATA BUDULICA), DECEASED

(respondent)

FILE NO/S:

5191 of 2023

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme

DELIVERED ON:

12 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2023

JUDGE:

Freeburn J

ORDERS:

  1. Pursuant to section 6 of the Succession Act 1981, the respondent, Stanislave Budulica is removed as executor of estate of the late Katica Budulica (also known as Kaja Budulica and Kata Budulica), deceased (the estate);
  2. Until further order, a solicitor nominated by the President of the Queensland Law Society (QLS) be appointed as the substitute executor in place of the respondent, that appointment to take place on and from the date the substitute executor accepts that appointment in writing to the President of the QLS, with a copy to be forwarded to the Resolutions Registrar of the Supreme Court (Resolutions Registrar);
  3. Subject to the formal requirements of the Registrar, letters of administration be granted to the substitute executor so appointed;
  4. Upon the acceptance of the appointment:

a. The substitute executor shall have all the powers of a personal representative under the Succession Act 1981, and the Trusts Act 1974 and at common law;

b. all the assets comprising the estate shall vest in the substitute executor;

c.  the respondent shall hand over to the substitute executor all of the administration files, financial documents, bank statements and estate papers;

d.  the respondent shall transfer any estate funds or other assets in his possession or control to the substitute executor;

e.  the respondent shall deliver to the substitute executor the original grant of probate so that the substitute executor can forward that original grant, an affidavit attesting to their appointment, and a sealed copy of this order to the Resolution Registrar, so that a memorandum of this order can be endorsed on the grant or permanently annexed to the grant;

  1. Pursuant to rule 638(5) of the Uniform Civil Procedure Rules 1999, and subject to further orders of the Court, the Court fixes the remuneration of the substitute executor as the remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court scale, as varied from time to time, on an indemnity basis, the substitute executor’s costs to be assessed at approximately two monthly intervals, and on the completion of the administration;
  2. the parties and the substitute executor, and any person who is proposed to be appointed as substitute creditor, shall have liberty to apply for directions in relation to the administration of the estate on giving reasonable notice;
  3. the parties be heard on costs.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – REMOVAL AND DISCHARGE – where the respondent was appointed the executor and trustee of his mother’s will – where the applicant and respondent are estranged – where the applicant applies to remove the respondent as executor – whether the respondent should be removed as executor on the basis of delay in administration of the estate – whether the respondent should be removed as executor on the basis that he is not acting in the best interests of the estate 

Authorities

Succession Act 1981 (Qld) s 6, s 52(1)(d)

Trusts Act 1974 (Qld) s 33(1)

Uniform Civil Procedure Rules 1999 (Qld) r 638(5)

Baldwin v Greenland [2007] 1 Qd R 117

Budulica v Budulica [2016] QSC 184.

Budulica v Budulica [2017] QSC 60

Colston v McMullen [2010] QSC 292

Davies v Davies (No. 1) [2019] QSC 293

Ford v Princehorn [2012] NSWSC 1165

Miller v Cameron (1936) 54 CLR 572

Re Badstuebner [2020] QSC 144; [2020] 4 Qd R 500

Williams v Williams [2005] 1 Qd R 105

COUNSEL:

nil

SOLICITORS:

Both parties were self-represented

REASONS

  1. [1]
    This is a dispute between a brother and sister over their mother’s estate.  Katica Budulica (Katia),[1] the mother, died on 8 December 2013 – nearly 10 years ago. Katia’s children have managed to sustain disputes about their mother’s estate for most of the decade since Katia’s death.
  2. [2]
    The present applicant, Slavica Budulica (Sylvia), has brought this application against her brother Stanislav Budulica (Stan).  The primary relief she seeks is to remove her brother as the executor of her mother’s estate.
  3. [3]
    Both Sylvia and Stan were self-represented.  However, the experience they have gained in their near decade long dispute and litigation means that they were certainly not hesitant or disadvantaged by being self-represented.

The Material

  1. [4]
    Both Sylvia and Stan filed affidavits.  Sylvia’s affidavit comprised six pages with roughly 400 pages of exhibits.  Stan was a little less prolific.  His affidavit comprises 14 pages with more than 100 pages of exhibits.[2]
  2. [5]
    The exhibits to Sylvia’s affidavit included, for the benefit of the reader, some handwritten annotations.  No objection was taken to the annotations.[3]  Two examples can be given.  Against some bank account details are entries such as:
  • “Where did the other 4 rents go to”.
  • “Into my brother’s pocket for pokies.  That’s where – while I live on welfare.”[4]
  1. [6]
    And, on Stan’s 2014-15 tax return, Sylvia has written:
  • “Mother is dead 2 years yet still has a bank account.”
  • “She also has road assist (RACQ) for last 6 years.  Must be driving from the grave.”[5]
  1. [7]
    Next to a bank statement which records an ATM withdrawal of $1,000 in cash at the Sharks Club at Victoria Point Sylvia has written “Pokies”.

Procedural History

  1. [8]
    The litigation between Sylvia and Stan has been prolific.  On 10 June 2015 Sylvia brought an out-of-time application claim for family provision.  That application was dismissed by Byrne SJA on 19 August 2016.[6]  On 28 February 2017 an appeal was dismissed with costs.
  2. [9]
    In the meantime, on 18 February 2016 Sylvia had brought an application to remove Stan as executor.  That application was dismissed by Mullins J on 21 April 2017.[7]
  3. [10]
    Sylvia made another application to remove Stan as executor on 16 April 2019.  That application was dismissed by Brown J on 29 April 2019.
  4. [11]
    Not deterred, on 5 June 2019, Sylvia brought applications for estate accounts and for a declaration that she held a 50% interest in a property at Jamieson Street, Bulimba (Jamieson Street). That property was originally registered in the name of Stan and his father as joint tenants and then passed to Stan by survivorship.  That application also sought that 50% of the funds held in Katica’s bank account be distributed to Sylvia as a beneficiary.  Various other orders were sought in this volley of applications.  Those various applications were dismissed by Boddice J on 26 June 2019 and 16 April 2020 and by Bradley J on 22 November 2019.
  5. [12]
    On 23 September 2020 Sylvia again brought an application.  The principal relief she sought was Stan’s removal, but the relief sought in the original application stretches to 22 paragraphs.  That application was dismissed by Flanagan J on 1 October 2020.
  6. [13]
    Sylvia’s complaints about Stan’s administration of their mother’s estate fall into a number of categories.  The first is that Stan has failed in his duties as executor because of the delays in administering the estate.[8] However, there are other claims such as tax fraud, embezzling money, using estate money to play poker machines, failing to pay rental income into the estate account and securing for himself a property at Jamieson Street Bulimba.[9]

The Estate

  1. [14]
    When Katica died in December 2013, the estate she left comprised two properties:
    1. (a)
      76 Barton Road, Hawthorne (Barton Road); and
    2. (b)
      92 Stuart Street, Bulimba (Stuart Street).
  2. [15]
    Barton Road was sold in October 2019.  The proceeds of sale were approximately $1.7m. According to Sylvia’s former solicitors the proceeds of the sale of Barton Road were distributed as follows:
    1. (a)
      an interim distribution to Sylvia of $50,000;
    2. (b)
      reimbursement to Stan of $226,737;
    3. (c)
      payment of nominal estate administration expenses; and
    4. (d)
      the balance of about $1.4m was paid into the estate’s bank account.[10]
  3. [16]
    Stan says, and I accept, that a further interim distribution of $500,000 was made to Sylvia in 2022.
  4. [17]
    The remaining property, Stuart Street, comprises a block of four units.  This property remains unsold. No steps have been taken to sell Stuart Street. In October 2022 Sylvia’s solicitors attributed a market value of $550,000 to each of the units and an overall value for the property at $1.7m to $1.9m.
  5. [18]
    The cash funds in the estate, according to Sylvia’s former solicitors, was roughly $1.4m as at October 2022. Stan says that, as at 6 June 2021, the balance was $1.36m and that the proceeds of the sale of Barton Road were being used to pay ongoing estate administration expenses.

Delay

  1. [19]
    Probate was granted on 25 August 2014.  Nearly nine years later the administration of the estate is some distance from being completed.  Stan says that the finalisation of the estate is currently subject to:
    1. (a)
      the appropriation of Stuart Street to him in accordance with a proposal he put to Sylvia in a letter to her solicitors on 9 November and 12 December 2022;
    2. (b)
      preparation of the final estate tax return pending final distribution; and
    3. (c)
      “the conduct of Sylvia”.
  2. [20]
    In my view, it seems plain that much needs to be done.  Stuart Street needs to be sold.  The four units are presumably subject to leases.  The position of the lessees will need to be ascertained. A marketing campaign will be needed and an auction.  Then the funds will need to be distributed and estate accounts prepared. Stan’s affidavit says that he intends to apply for executor’s commission.
  3. [21]
    None of those steps are in progress.  Stan says this in his affidavit:
  1. “(i)
    I have instructed my solicitors that I wish to receive the Stuart Street property as part of my entitlement out of the estate as it holds great sentimental value.
  1. (j)
    Once my solicitors provide me with draft estate accounts for review, I will obtain a current market valuation of the Stuart Street property and will instruct my solicitors to calculate the value of the Applicant’s and my entitlement out of the estate on the basis of that valuation within seven (7) days.
  1. (k)
    Within seven (7) days of being advised by me solicitors of the approximate value of my entitlement out of the estate, I will either:
  1. (i)
    Instruct my solicitors to notify the Applicant of my intention to appropriate the property; or
  1. (ii)
    Appoint a real estate agent to sell the property.
  1. (l)
    If I instruct my solicitors to notify the Applicant of the intent to appropriate and the Applicant consents to the appropriation, I will take all steps necessary to transfer the property to myself within fourteen (14) days including, if necessary, paying my own funds into the estate to purchase the estate’s share of the property and distributing those funds to the Applicant as part of the majority interim distribution to her discussed in subparagraph (g) above.
  1. (m)
    If I instruct my solicitors to notify the Applicant of the intent to appropriate and the Applicant objects to the appropriation, I will instruct my solicitors to apply to the court for leave to appropriate the property to myself within fourteen (14) days.”
  1. [22]
    Stan says that he has supplied Sylvia or her lawyers with all of the relevant financial documents. Sylvia agrees she has received many pages. But it seems plain that Stan has not prepared or even commenced preparing the estate accounts. In fact, Stan’s affidavit suggests that the remaining step is merely the preparation of the final estate tax return. In that respect, I am not confident that Stan understands his obligation to account. A personal representative is under a duty to keep proper books of account which contain a full and frank financial record of his or her administration of the estate, including providing an account for the assets which have come into his or her possession and to account for his or her dealings with those assets.[11]

Appropriation

  1. [23]
    As can be seen, Stan seeks to appropriate Stuart Street to himself.  As can be seen from the extract above, Stan says that Stuart Street, a block of units, holds some sentimental value for him. Stan’s desire to acquire Stuart Street for himself explains the absence of steps to sell that property. It is necessary to explain something of Stan’s recent steps to appropriate Stuart Street.
  2. [24]
    On 11 October 2022 Marino Law, on behalf of Sylvia, wrote to Stan’s solicitors, Mitchells Solicitors.  After referring to the history between Stan and Sylvia as “tortured”, and setting out the facts, Marino Law said that Sylvia wished for the administration of the estate to be finalised and for final distributions to be made to each of Stan and Sylvia.
  3. [25]
    Marino Law referred to Stan’s proposed appropriation of Stuart Street to himself – to occur in July 2019.  They referred also to the nine years since Katica had died and Stan’s failure and refusal to promptly proceed with the administration of the estate.
  4. [26]
    At paragraphs 10 and 11 of their letter Marino Law said:

“10. Given the long-standing dispute between our respective clients, together with the complexity of the estate of the Deceased and considering the various costs orders against our client which may be able to be accounted from our client’s distribution, it is evident that an independent expert needs to conduct an accounting of the estate of the Deceased.

11. Pursuant to rule 645(1) of the UCPR, our client requests for an estate account to be prepared in accordance with rule 648 of the UCPR and served within 30 days after service of the notice.”

  1. [27]
    Marino Law then requested information and threatened an application to the court if their demands were not met.
  2. [28]
    On 9 November 2022 Stan responded to Marino Law.  Excerpts from that letter are as follows:

“5.    Sylvia’s failure and refusal to respond to my solicitors correspondence has caused delays and additional unnecessary expenses to the Estate. Progress of and the Estate finalisation remains with her.

…

  1. Once this information (to be provided by Stan) is taken into consideration and your client informed.  You will be fully conversant of the true financial position of the Estate.  Please advise me as in moving forward to progress to the finalisation of the Estate.
  1. The steps to be taken:-

a. I seek your client’s consent in principle to the appropriation of the 92 Stuart Street property as my half share entitlement of the Estate.  The valuation of the said property and with an agreed cash adjustment as required in who’s Evers favour to achieve an equal half share of the Estate.

b. If an agreement cannot be reached, I will therefore make an application to the court for resolution.

c. On the court’s determination and any court consent orders’s in regards to this issue I will act accordingly.

d. I will not be making an application for Executor’s commission.

e. On conclusion of the Estate, I will retain a notable amount (Approx $20,000.00) of funds to pay final Invoices and Bills (Final Tax Return and any other issues requiring attention and resolution).  I will make final distribution in accordance with (IAW) the will.  And once complete finalisation of Estate is achieved, I will distribute, the any retained remaining funds to be beneficiaries equally.”

  1. [29]
    It is difficult to make sense of that.  Doing the best I can, it seems that, firstly, Stan is saying that further information is on its way – perhaps the estate accounts – but that seems doubtful because Stan does not appear to appreciate the need to prepare the estate accounts.  Secondly, Stan seeks Sylvia’s agreement in principle to the appropriation of Stuart Street to him as his 50% share with the cash assets of the estate to be adjusted so that he and Sylvia each receive 50%.  Thirdly, the property is to be valued – although in argument Stan said that he already had a 2019 valuation which he was relying on.[12]  Fourthly, if agreement cannot be reached, Stan will make an application to the court.
  2. [30]
    On 12 December 2022 Stan wrote again to Marino Law.  He again stated that he had provided Sylvia with copies of various financial documents.
  3. [31]
    Then nothing happened.  Marino Law and Sylvia did not respond. Stan did not pursue his proposed appropriation of Stuart Street.  On 28 April 2023, Sylvia filed this further application seeking Stan’s removal as executor and various other orders.
  4. [32]
    Stan’s appropriation proposal in his letter of 9 November 2022 suffers from some problems.  First, Stan seeks Sylvia’s agreement in principle to an appropriation of Stuart Street to himself and yet Sylvia does not have either an up-to-date valuation of Stuart Street or the estate accounts.  That means Sylvia is being asked to agree in principle to a distribution when she does not even have a rough idea of the proposed apportionment - either the likely sum she will receive or the value to be attributed to Stuart Street, or even when the distribution is likely to occur. The only part of the proposal that is concrete is the 50% apportionment. The value of Stuart Street and the cash to be shared or apportioned are both clouded in some mystery.
  5. [33]
    Second, of course, Stan’s answer to that problem is to say that all Stan is seeking is an agreement in principle.  The problem, though, is that an agreement in principle – even if it could be achieved in this case – does not take the parties very far.  There is little or no prospect that the parties will agree in principle, let alone on the detail.

Law on Appropriation

  1. [34]
    Section 33(1)(l) of the Trusts Act 1973 authorises a trustee, including an executor, to appropriate any part of the estate property in or towards the satisfaction of any legacy.  However, that statutory provision envisages a valuation of the property being appropriated and notice to interested parties.
  2. [35]
    Of course, the problem here is that Stan proposes to appropriate Stuart Street to himself.  The only way that could happen is with Sylvia’s agreement.  The position is usefully summarised by GE Dal Pont as follows:

“[14.49] Whether sourced at common law or under statute, the power to appropriate must be exercised in line with fiduciary duties imposed on personal representatives.  It has been judicially observed, to this end, that ‘[t]here is no case in which an appropriation by a personal representative in his or her own favour of assets of the estate in satisfaction of a pecuniary legacy has been upheld.’  The exercise of such a power in this way, it is reasoned, infringes the ‘purchase rule’, which precludes representatives purchasing the property of the estate.  But this can be legitimated under the terms of the will, or by agreement with the remaining beneficiaries.”[13]

The Core Problem

  1. [36]
    The core of the problem, therefore, is that Stan keenly desires to acquire the Stuart Street property from the estate, and he is unwilling to proceed with the administration until Sylvia gives him an answer to his ‘in principle’ proposal. It is an unreasonable stance. First, the delays thus far are considerable. Stan’s willingness to ‘wait it out’ is inconsistent with his obligations. Stan’s duty is to distribute the estate “as soon as may be”.[14] Whilst that duty is “subject to the administration” of the estate, a substantial delay in the administration of the estate may of itself result in a breach of the duty in s 52(1)(d) of the Succession Act 1981.
  2. [37]
    Second, Stan’s stance of doing nothing to progress the administration of the estate only makes sense if there was some realistic hope that Sylvia will agree to the appropriation in principle and will then agree to the detail. There is absolutely no basis for that hope.
  3. [38]
    Stan’s stance is divorced from reality.  As he himself says, Sylvia has not agreed or co-operated at all.  It is impossible to see any possible basis upon which Stan could sensibly hold hope of Sylvia agreeing to his ‘in principle’ proposal, let alone, a properly detailed appropriation with a supporting valuation.
  4. [39]
    The only realistic conclusion is that Stan is refusing to continue with the administration as a deliberate strategy in the hope that Sylvia will be forced to agree to his proposal.  History is against him.
  5. [40]
    Third, Stan is subject to fiduciary duties including the ‘no conflict’ rule which requires a personal representative to avoid placing his or her own interests in conflict with the duty as a personal representative.[15]  In Ford v Princehorn[16] an executor withheld payment of an interim distribution in order to induce the beneficiaries to consent to his claim for commission.  That was found to comprise a conflict between the executor’s own interests and the executor’s duties to the estate.
  6. [41]
    Similarly, in Re Badstuebner[17] Henry J observed that:

“An executor may be in breach of more than one duty if the executor threatens to slow the administration to induce beneficiaries to agree to the payment of an executor’s commission or some other disposition of estate property to the executor as a beneficiary.  If, for such a purpose, the executor needlessly delays the administration, including the making of an interim distribution which can be safely made, then the executor will be in breach of both the duty to avoid conflict of interest and the duty to distribute as soon as may be.”

  1. [42]
    Here, the delays in the administration have been extraordinary.  The estate is not particularly complex.  Even taking into account the need to respond to Sylvia’s many applications, nine years is a very long time.  When the Barton Road property was eventually sold in October 2019, of the proceeds of $1.7m (approx.) some $1.4m (approx.) was banked into the estate account.  It remains undistributed.  Even Marino Lawyers’ threats three years later in October 2022 seem not to have prompted Stan into this action.

Other Concerns

  1. [43]
    The evidence discloses some other concerns with the administration thus far. First, Stan appears to have made some cash ATM withdrawals from the estate account. I am unable to determine whether those withdrawals were proper or not. But the practice is an undesirable one.
  2. [44]
    Second, as explained above, Stan appears to consider that his obligation to account is limited to providing Sylvia with various financial documents and then having a final tax return for the estate. That rather understates his obligation as executor.
  3. [45]
    Third, as long ago as 7 February 2018, Stan was attempting to secure an agreement with Sylvia. On that day his then solicitors wrote to Sylvia enclosing a CD which included various financial documents relating to the estate. They said:

Once you have reviewed the information contained on the CD we ask you to again consider the proposal contained in our letter to you of 5 October 2017. That correspondence contains our client’s proposal for the finalisation of the estate administration. Our client is in fact keen to administer and distribute the estate and this will be done much more quickly if he is able to reach agreement with you in relation to all outstanding matters.

However, if agreement cannot be reached with you, it will be necessary for our client to engage a costs assessor [enforce the four costs orders that had been obtained to that point and] (m)ake application to the court for the payment of executors commission to our client.

It is possible that other applications to the court will also be required. All of the above will delay the finalisation of the estate and will involve significant costs to the estate. For these reasons you may consider it to be in your own best interest to reach an agreement with our client in relation to the finalisation and distribution of the estate. Doing so is likely to maximise the amount of the distribution to you and achieve that in the shortest possible time.

  1. [46]
    The referenced letter of 5 October 2017 does not appear to be in the material. However, the likelihood is that the proposal refers to a split of the estate property that involves Stan acquiring Stuart Street. In any event the letter is remarkable because it was it was written more than 5 years ago and, apart from the sale of Barton Road, there has been little progress. The letter is also remarkable because of Stan’s willingness to deploy delays, costs orders and executors commission as weapons aimed at securing Sylvia’s agreement to Stan’s proposed apportionment of the estate.
  2. [47]
    Of course, I am unable to make any findings about the facts. The evidence is somewhat shambolic. It is sufficient to say that the attitude of the executor, as demonstrated by the correspondence, does not have the character of an executor who is acting in the best interests of the estate.

Law on Removal of Executors

  1. [48]
    The court’s power to remove an executor is not in doubt. Margaret Wilson J discussed the statutory basis for the power in Williams v Williams.[18] The power is a supervisory and protective one, the overriding object of which was the due and proper administration of estates.[19]
  2. [49]
    As White J explained in Colston v McMullen:

The court may remove an executor to whom a grant of probate has been given. This occurs by the revocation of the grant. Such a removal will occur when the court is persuaded that the due and proper administration of the estate in the interest of those beneficiaries entitled has been put in jeopardy, or prevented, by reason of the acts or omissions of the executor or, because of matters personal to him or her, or for some good reason the executor is not a fit and proper person to carry out the executorial duties.[20]

  1. [50]
    The exercise of the discretion was explained by Dixon J in Miller v Cameron:

“The jurisdiction to remove a trustee is exercised with a view to the interests of the beneficiaries, to the security of the trust property and to an efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers conferred upon the trustee. In deciding to remove a trustee the Court forms a judgment based upon considerations, possibly large in number and varied in character, which combine to show that the welfare of the beneficiaries is opposed to his continued occupation of the office. Such a judgment must be largely discretionary. A trustee is not to be removed unless circumstances exist which afford ground upon which the jurisdiction may be exercised. But in a case where enough appears to authorise the Court to act, the delicate question whether it should act and proceed to remove the trustee is one upon which the decision of a primary Judge is entitled to especial weight.”[21]

  1. [51]
    A court will not lightly interfere with a testator’s appointment of executors and trustees. Its ultimate concern must be with the due administration of the estate in the interests of creditors and beneficiaries.[22]

Conclusions on Removal

  1. [52]
    Here, the history of the administration demonstrates that, the longer this administration continues, the more that disputes will accrue. The delay itself is a reason to interfere.
  2. [53]
    And, as I have mentioned, the delay is not the only problem.  In my view no reasonable executor could entertain any prospect that Sylvia would agree in principle to the proposed appropriation, let alone to a detailed proposal supported by an up-to-date valuation. Stan’s determination to acquire Stuart Street has caused him to continually delay the administration and to thereby put himself in a position where he is needlessly delaying the administration in order to maximise his own prospects of acquiring Stuart Street.
  3. [54]
    In the circumstances it is appropriate and necessary that an independent and experienced solicitor be appointed as executor. That person can be nominated by the President of the Queensland Law Society who has access to accredited specialists in the field of succession law.
  4. [55]
    I am unable to make a determination about Sylvia’s other complaints of fraud, embezzlement, using estate money to play poker machines, failing to pay rental income into the estate account, and securing for himself a property at Jamieson Street Bulimba. The claims are made but no pleadings have identified the precise issues, and the evidence, such as it is, has not been tested. It is sufficient to note that an experienced and independent substitute executor can determine whether Stan’s claims are proper documented and whether any claims warrant investigation.

Other Relief Sought

  1. [56]
    Sylvia sought other relief. She sought, once again, family provision from the estate. However, her evidence and submissions did not address that issue. There is no basis for revisiting the application that was dismissed by Byrne SJA on 19 August 2016, let alone a basis for extending the time to make such an application.
  2. [57]
    Sylvia seeks the production of various certificates of title, cash, estate documents and financial documents. Those are matters for the new independent executor.
  3. [58]
    After preparing these reasons Stan filed a further affidavit. Presumably Stan seeks to that the court exercise its discretion to permit him to re-open his case. The court has a discretion to re-open evidence and to re-open submissions where the interests of justice will be served by doing so.  As Bradley J explained in Davies v Davies (No. 1)[23] an applicant needs to identify exceptional circumstances because of the requirement of finality in litigation. No exceptional circumstances are identified. The material does not appear to fall into the category of fresh evidence that was not available at the time of the hearing. Indeed, much of the material (including another episode in the procedural history of the dispute) must have been available to Stan. There is the further problem that Sylvia has not had an opportunity to respond. In the circumstances it is not appropriate to permit re-opening of the case.

Form of Orders

  1. [59]
    The crafting of the orders is a matter of some complexity. Ultimately the orders I propose to make are as above.
  2. [60]
    I shall hear the parties on costs.

Footnotes

[1]  For convenience, I have referred to the parties and the deceased by their first names.

[2]  In fact, Stan’s affidavit comprised a short affidavit which exhibited an earlier affidavit that had been prepared by the solicitors who acted for him previously.

[3]  Nevertheless, I accept the remarks as submission by Sylvia rather than evidence.

[4]  Ex 1 p 10.

[5]  Ex 2 p 78.

[6] Budulica v Budulica [2016] QSC 184.

[7] Budulica v Budulica [2017] QSC 60.

[8]  That is not quite the precise complaint – but it appears to be the core of the complaint.  Paragraphs 1 and 2 of Sylvia’s affidavit read as follows: “1. As at 13 April 2023 there has been no administration of the Estate nor does there appear to be any intention to administer of the Estate. 2. The Respondent continuously blames me for all the delays in the administration of the Estate and Court proceedings, as he is not performing his fiduciary duties as executor.”

[9]  The tax returns for Katia and Stanko do show a 50% ownership for the financial year ended 30 June 2001 but Stan’s tax return for the same year shows that he held 50% and each of his parents held 25%.

[10]  According to the financial documents annexed to Sylvia’s affidavit, on 4 December 2019 a sum of $1.3m was transferred into a term deposit with the Commonwealth Bank leaving a balance of approximately $90,000.

[11]  The general law has long recognised that an executor owes a cardinal duty to account to the beneficiaries; a failure to keep proper accounts can provide a trigger for the removal of a personal representative: GE Dal Pont Law of Executors and Administrators (2022) at [12.35], [12.36].

[12]   Sylvia said she had not received the 2019 valuation. No such valuation was put into evidence. An appropriation is made at the value of the appropriated asset at the date of the appropriation and not as at the date of the deceased’s death: Re Charteris [2017] 2 Ch 379 at 386; Re Collins [1975] 1 WLR 309.

[13]  GE Dal Pont, Law of Executors and Administrators (2022) at [14.49].

[14]  Section 52(1)(d) of the Succession Act 1981.

[15] Re Badstuebner (deceased) [2020] QSC 144 (Henry J) at [37].

[16]  [2012] NSWSC 1165 at [42].

[17]  [2020] 4 Qd R 500 at [38].

[18]  [2005] 1 Qd R 105 at [5]-[16]. See also Colston v McMullen [2010] QSC 292 at [38] (White J)

[19]Baldwin v Greenland [2007] 1 Qd R 117.

[20]  [2010] QSC 292 at [39].

[21]  (1936) 54 CLR 572 at 580-581. This passage has been expressly cited by Macrossan J in Re Whitehouse [1982] Qd R 196 and by White J in Colston v McMullen [2010] QSC 292.

[22] Williams v Williams [2005] 1 Qd R 105 at [45].

[23]  [2019] QSC 293 at [7]-[10].

Close

Editorial Notes

  • Published Case Name:

    Budulica v Budulica

  • Shortened Case Name:

    Budulica v Budulica

  • MNC:

    [2023] QSC 99

  • Court:

    QSC

  • Judge(s):

    Freeburn J

  • Date:

    12 May 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Baldwin v Greenland[2007] 1 Qd R 117; [2006] QCA 293
2 citations
Jump To
Cite 1 - [2007] 1 Qd R 117
Cite 2 - [2007] 1 Qd R 117
Budulica v Budulica [2016] QSC 184
2 citations
Jump To
Cite 1 - [2016] QSC 184
Cite 2 - [2016] QSC 184
Budulica v Budulica [2017] QSC 60
2 citations
Jump To
Cite 1 - [2017] QSC 60
Cite 2 - [2017] QSC 60
Colston v McMullen [2010] QSC 292
4 citations
Jump To
Cite 1 - [2010] QSC 292
Cite 2 - [2010] QSC 292
Cite 3 - [2010] QSC 292
Cite 4 - [2010] QSC 292
Davies v Davies [2019] QSC 293
2 citations
Jump To
Cite 1 - [2019] QSC 293
Cite 2 - [2019] QSC 293
Ford v Princehorn [2012] NSWSC 1165
2 citations
Jump To
Cite 1 - [2012] NSWSC 1165
Cite 2 - [2012] NSWSC 1165
Miller v Cameron (1936) 54 CLR 572
2 citations
Jump To
Cite 1 - (1936) 54 CLR 572
Cite 2 - (1936) 54 CLR 572
Re Badstuebner [2020] 4 Qd R 500
2 citations
Jump To
Cite 1 - [2020] 4 Qd R 500
Cite 2 - [2020] 4 Qd R 500
Re Charteris [2017] 2 Ch 379
1 citation
Jump To
Cite 1 - [2017] 2 Ch 379
Re Estate of Badstuebner(2020) 4 QR 490; [2020] QSC 144
2 citations
Jump To
Cite 1 - [2020] QSC 144
Cite 2 - [2020] QSC 144
Re Whitehouse[1982] Qd R 196; [1981] QSC 245
1 citation
Jump To
Cite 1 - [1982] Qd R 196
Robinson v Collins [1975] 1 WLR 309
1 citation
Jump To
Cite 1 - [1975] 1 WLR 309
Williams v Williams[2005] 1 Qd R 105; [2004] QSC 269
3 citations
Jump To
Cite 1 - [2005] 1 Qd R 105
Cite 2 - [2005] 1 Qd R 105
Cite 3 - [2005] 1 Qd R 105

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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