Georgios Vasilios Sotiropoulos as executor of the estate of the late Maria Sotiropoulos v Vlasios Vasilios Sotiropoulos [2015] NSWSC 855

Supreme Court New South Wales

Medium Neutral Citation: Georgios Vasilios Sotiropoulos as executor of the estate of the late Maria Sotiropoulos v Vlasios Vasilios Sotiropoulos [2015] NSWSC 855 Hearing dates: 24 March 2015 Date of orders: 01 July 2015 Decision date: 01 July 2015 Jurisdiction: Equity Division - Admiralty List Before: Robb J Decision: (1) Order that the plaintiff's amended summons be dismissed. (2) Direct the parties to deliver submissions on the costs order that should be made to the associate to Robb J within 7 days. (3) Order that any exhibits and any documents produced on subpoena may be returned forthwith in accordance with the Rules. Catchwords: SUCCESSION – wills, probate and administration – executor – judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) sought – judicial advice not given – summons amended as issues raised more apt for resolution by contested suit between interested parties based upon evidence SUCCESSION – wills, probate and administration – determination of burden of deceased's debts owed to bank secured by some only of the properties owned by the deceased – deed of forbearance executed by NSW Trustee and Guardian with bank, on behalf of deceased – whether the deed of forbearance signifies contrary intention regarding debt repayments, pursuant to s 145 REAL PROPERTY – Torrens title – mortgages, charges and encumbrances – whether a charge was created by the deed of forbearance – charge only created by agreement that the creditor be paid out of an asset and will have a proprietary right in the asset to cause it or its value to be applied in reduction of debt – the deed was contingent and left the deceased with discretion in method of debt reduction – no charge created – NSW Trustee and Guardian did not retain proceeds of sale as a separate fund – however, if charge was created, it would bear the burden of deceased's debt proportionally with the properties mortgaged to the bank – s 83 of the NSW Trustee and Guardian Act 2009 (NSW) would not affect this position Legislation Cited: Conveyancing Act 1919 (NSW) Interpretation Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Trustee Act 1925 (NSW) Cases Cited: Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 Halsted (Bankrupt) v The Official Trustee in Bankruptcy, in the matter of Halsted (Bankrupt) [2011] FCA 1242 Jackson v Richards [2005] NSWSC 630; (2005) 12 BPR 23,091 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 Nicholson v Boulton (1923) WN 251 Re Rosewood Research Pty Ltd (No 2) [2014] NSWSC 12 Re Wakefield [1943] 2 All ER 29 RL v NSW Trustee and Guardian [2012] NSWCA 39; (2012) 84 NSWLR 263 Texts Cited: Fisher & Lightwood's Law of Mortgage (Australian edition) Category: Principal judgment Parties: Georgios Vasilios Sotiropoulos as executor of the estate of the late Maria Sotiropoulos (plaintiff) Vlasios Vasilios Sotiropoulos (defendant) Representation: Counsel: C Birch SC/V Bedrossian (plaintiff) B W Rayment QC/M Sneddon (defendant) Solicitors: Hunt & Hunt (plaintiff) Fox & Staniland (defendant) File Number(s): 2012/299555 Publication restriction: None