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

Supreme Court New South Wales

Medium Neutral Citation: Ivanna Ann-Marie Ferenc Stojic v Simon Stojic [2017] NSWSC 1235 Hearing dates: 11 September 2017 Date of orders: 12 September 2017 Decision date: 12 September 2017 Jurisdiction: Equity - Probate List Before: Kunc J Decision: Application to remove executor refused Catchwords: Succession — Executors and administrators — Proceedings against executors and administrators — Application to remove executor Legislation Cited: Supreme Court Rules 1970 (NSW) Cases Cited: Bates v Messner (1967) 67 SR (NSW) 187 Estate Stojic, Deceased [2017] NSWSC 168 Re the Estate of S [1968] P 302 Category: Procedural and other rulings Parties: Ivanna Ann-Marie Ferenc Stojic (First Plaintiff) Ivan Matthew Stojic (Second Plaintiff)

Simon Stojic (Defendant) Representation: Counsel: D A Smallbone (First and Second Plaintiffs)

R D Wilson SC and C Birtles (Defendant) K Beashel (for Marijan Stojic by his tutor)

Solicitors: Prime Lawyers (First and Second Plaintiffs) Teece Hodgson & Ward (Defendant) File Number(s): 2014/315956 Publication restriction: No

EX TEMPORE Judgment

Summary 1. This judgment deals with another round in the multiple legal disputes arising from the death of Ivan Stojic (the "Deceased"), who died in Zagreb, Croatia on 13 June 2014. The Deceased left property in New South Wales; a total of five children by four partners; and multiple wills including, relevantly, wills dated 4 November 2013, 23 May 2014, and 6 June 2014. I will refer to the latter two wills as the "Disputed Wills". 2. In Estate Stojic, Deceased [2017] NSWSC 168 ("Estate Stojic"), Lindsay J, sitting as Probate Judge, granted probate in solemn form of the Deceased's will dated 4 November 2013 to the Deceased's son, Simon Stojic, passing over the Disputed Wills. Without any disrespect intended, I shall refer to the various family members by their given names. 3. The Disputed Wills had been propounded by two of the Deceased's other children, Ivanna and Matthew. 4. An appeal from Justice Lindsay's decision in Estate Stojic has been expedited and is listed for hearing in two weeks on 26 September 2017. It was common ground that if the appeal is successful, then the grant of probate to Simon will be revoked in favour of one or both of Matthew and Ivanna. 5. There is clearly no love lost between the parties. Notwithstanding the proximity of the appeal, by notice of motion filed on 31 August 2017, Ivanna and Matthew ask the Court to revoke the grant of probate to Simon of the will dated 4 November 2013. They submit they should be granted letters of administration cta of that will or, in the alternative, Ms Pamela Suttor, solicitor, be reappointed as special administrator of the Deceased's estate, a position she previously occupied. 6. Mr D A Smallbone of Counsel appeared for Ivanna and Matthew. He submitted that the estate was at hazard with Simon as executor and that, irrespective of the outcome of the appeal, Simon was unfit to administer the estate. 7. Mr R D Wilson of Senior Counsel, with Mr C Birtles of Counsel, appeared for Simon. He submitted that the evidence demonstrated no urgency in the nature of imminent risk to the estate and said nothing should happen pending the determination of the appeal from the decision in Estate Stojic. Mr Wilson also submitted that it was inappropriate for the application to be dealt with "on the run" in a motions list pursuant to a motion. Proceedings for the revocation of a grant should be brought in a separate proceeding by statement of claim to enable proper consideration of the issues. 8. Ms K Beashel appeared for the tutor of the minor plaintiff (Marijan Stojic) in one of the family provision proceedings pending in relation to the estate. Her submission was that the present application should be stood over until after the appeal is heard or, in the alternative, if the Court decided that an interim order should be made, then a special administrator should be appointed. 9. In my opinion, the evidence does not demonstrate that the estate is at such imminent risk that the application should be determined on the urgent — and procedurally somewhat irregular — basis propounded by Ivanna and Matthew. In reaching that conclusion I am not to be taken as expressing any view on the ultimate merits of their complaints about Simon. Orders in the nature of a stay of much of Simon's powers as executor have been made by Lindsay J pending the appeal from his decision. The evidence does not disclose anything that is likely to happen in the short term against the interests of the estate which would warrant peremptory intervention by the Court. 10. Furthermore, it may be (again without expressing any view as to the likely outcome) that Ivanna and Matthew will achieve the result they seek through a victory in the Court of Appeal proceedings, the hearing of which is only two weeks away. For these two reasons — lack of demonstrated circumstances warranting urgent intervention and the imminence of the Court of Appeal proceedings — the Court will dismiss the motion.